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S.H. v. K.H. [2005] ScotCS CSIH_70 (13 October 2005)
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Penrose Lord Macfadyen Lord Marnoch
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[2005CSIH70] A867/01 OPINION OF LORD PENROSE in RECLAIMING MOTION by S.H. Pursuer and Reclaimer; against K.H. Defender and Respondent:
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Act: Clarke; Balfour & Manson (Pursuer and Reclaimer)
Alt: Hayhow; Digby Brown (Defender and Respondent)
13 October 2005
[1] In this reclaiming motion, the pursuer and reclaimer seeks recall of an interlocutor dated 18 March 2003 by which the Lord Ordinary dismissed her action for declarator that a pretended marriage between the parties at Stirling Registry office on 22 June 1998 was null by reason of lack of consent by the parties to the marriage. [2] On 31 May 2004, the Extra Division allowed a minute of amendment for the pursuer (no 21 of process) to be received and answered, on the ground that theaverments proposed might involve res noviter veniens ad notitiam. Answers were lodged (no 22 of process), and both documents were thereafter adjusted. On 24 June 2004, the court allowed the pleadings to be amended in terms of the adjusted minute of amendment and answers, allowed parties a proof on the issues raised by the new material, and remitted to Lord Macfadyen to take that proof and to report. In due course he reported the proceedings and the findings in fact made in the light of the evidence led. Some of his findings differ from the findings of the Lord Ordinary. The Lord Ordinary accepted evidence that has subsequently been admitted to have been perjured. In these unusual circumstances it is necessary to review the factual basis on which a decision in this reclaiming motion must now proceed.
[3] The pursuer was 21 years of age at the time of the original proof. She had been born in Scotland on 19 June 1981. Her parents, who were then divorced, had come to Scotland from Pakistan. The pursuer was living with her mother at the time of the proof. She was a student at Glasgow University. The defender and respondent was 29 years of age. He had come to Scotland in or about February 1998 from Pakistan to stay with his older brother who, with his wife and daughter, lived in Stirling. He had come for medical treatment on a visitor's visa which entitled him to remain in the United Kingdom for six months for the purpose of receiving that treatment. [4] Both parties are Muslims. In or about March 1998, Mrs Salima Iqhbal made contact with the pursuer's mother. Mrs Iqhbal was acquainted with the defender's family in Scotland. She suggested that the defender would make a suitable husband for the pursuer, who was still at that point a secondary school pupil. Mrs Iqhbal was a friend of Mrs Jamila Chaudry who was, in turn, a friend of the pursuer's family. [5] A meeting took place, attended by the pursuer's mother, the defender's older brother and his wife, Mrs Chaudry and Mrs Iqhbal. The pursuer's mother considered that the defender's family were good people, and a further meeting was arranged so that she could meet the defender. The meeting took place and was attended by the same parties with, in addition, the defender. As a result of this second meeting, the pursuer's mother formed the view that the defender would make a suitable husband for the pursuer. [6] A further meeting took place towards the end of May 1998 for the parties to be introduced. It was attended by the pursuer and her parents; the defender, his brother, his brother's wife, and the defender's niece, Mr and Mrs Chaudry and Mrs Iqhbal. The meeting followed pre-arranged procedures. The pursuer, who already knew that her mother approved of the defender as her future husband, was in her bedroom. The defender was invited by the pursuer's mother and Mrs Chaudry to go into the room. The two ladies stayed outside the bedroom, but close to its door. The parties had a little time together. The duration of that period was not established. The defender thereafter withdrew from the bedroom. [7] After the defender withdrew, the pursuer's mother and father asked if she was happy at the prospect of having the defender as her husband. She said that she was quite happy to go along with her mother's wishes. At that stage each party found the other attractive, and contemplated the prospect of being a married couple without any difficulty. Once it had been ascertained by the pursuer's mother and father that she had no objection to being married to the defender, the parties became engaged to be married. The defender's family and friends delivered to the pursuer customary gifts of an engagement ring contained in a flower, clothes and shoes. Mrs Iqhbal placed the engagement ring on the pursuer's finger. These items had been brought to the meeting by the defender's family and friends in the hope and expectation that the pursuer would not object to being betrothed to the defender. The event became an engagement party. [8] In the course of the engagement party, there was discussion about the parties' future marriage. These discussions and the agreements reached are, in my view, critical to the decision in this reclaiming motion. The Lord Ordinary's findings are set out in paragraphs [7], [11] and [19] of his opinion. It is necessary to rehearse them together. It was agreed at the party that the ceremonies required by the parties' religion to constitute marriage would not take place until the summer of 1999 to enable the pursuer to complete her school education. The pursuer and her mother had intimated that they did not want the pursuer's education to be interrupted. She was at that time hoping to go to university. There were practical as well as religious factors pointing to postponement: the pursuer's education on the one hand, and the defender's wish to obtain employment or to set up in business, on the other, to put himself in a financially more secure position. [9] At the date of the engagement party, and thereafter and in particular at the date of the civil ceremony referred to below, both parties considered that to be married validly in the eyes of their Muslim religion they required to go through prescribed religious ceremonies known as 'nikkah' and 'rushkati'. They, and their families, did not consider it appropriate that they should live together as man and wife, and have sexual relations, until those proceedings were gone through. This finding, in paragraph [19] of the Lord Ordinary's opinion is important. It deals with two distinct issues. In the first place, it explains the position of religious Muslims, on the evidence, that there is no valid marriage unless and until the religious ceremonies are performed. In the second place, it makes it clear that it was the agreed position that the parties would not live together as man and wife until those ceremonies were performed. [10] The Lord Ordinary found that, at the time of the engagement party, it was appreciated that the defender would require to return to Pakistan on the expiry of his visa in or about August 1998 unless the visa was extended. It is not immediately clear how this can be reconciled with his intention to obtain employment or set up business, and the connection, if any, between this interest of the defender and what was to transpire was not explored in the Lord Ordinary's opinion. But it appears that the people involved in the discussion understood that one way of obtaining an extension of the visa would be to satisfy the immigration authorities that the parties were married and that they were living together as husband and wife. It was agreed that the parties should go through a civil wedding ceremony in early course. It was in that context that it was agreed that after that ceremony the parties would not live together as husband and wife until the ceremonies prescribed by their Muslim religion were performed. [11] It was arranged that a marriage ceremony would take place on 22 June 1998 at Stirling registry office. That ceremony took place. It complied in all respects with the procedural formalities prescribed by the Marriage (Scotland) Act 1977. Both parties knew at the time that, according to the law of Scotland, persons who voluntarily went through that form of ceremony would be regarded as being man and wife. (Indeed, it has to be noted that, but for that understanding, there would have been no purpose to be served in undertaking the procedures before the registrar.) The parties, of their own volition, went through the ceremony before the registrar in Stirling in that knowledge. [12] It is clear, from the Lord Ordinary's findings, that the parties' conduct at and immediately after the ceremony, both public and in the company of friends and relatives, was consistent with their sharing a view that what had taken place was a 'special occasion'. The pursuer and her family on the one hand, and the defender and his family on the other regarded it so. The pursuer wore a special wedding dress. Her sisters acted as bridesmaids and wore special dresses. The occasion was videod and the video film preserved. Photographs were taken. The video and the photographs presented a graphic image of the occasion as a happy and special family occasion where those attending had taken particular care over their dress and where the attitudes struck were what one would see at any wedding ceremony. [13] The proceedings at the registry office were followed by a party at the pursuer's family home. That party celebrated not only the event which had just taken place at the registry office, but also the fact that the pursuer's birthday had taken place some three days previously. The party was attended by the friends and family who had attended at the registry office ceremony and also by others - about 20 persons in total. This party was videod. The pursuer's home had been decorated and as well as decorations referring to her birthday there were others with the words "happy wedding" written upon them. There were flowers made up to depict the initials of the couple's first names. The pursuer gave evidence that the decoration of the house had been done by her friends. [14] After the registry office ceremony on 22 June 1998, according to the Lord Ordinary's findings, both the pursuer and the defender wished and anticipated that, in due course, they would go through a religious ceremony or ceremonies which would mean that, in the eyes of their religion, they were man and wife. [15] In arriving at that finding, the Lord Ordinary had, necessarily, to form a view of the credibility and reliability of the defender's evidence about his own attitude to future religious marriage with the pursuer at that date and subsequently. He had difficulty with the defender's evidence. He found that the defender had engaged in a range of deceptions in making applications for leave to remain in the United Kingdom, dealt with later, but that he had frankly admitted these deceptions, to which the Lord Ordinary held the pursuer was also a party. He considered that, while he had to approach the defender's evidence with some care, given his track record for deception, he could hold that on the essentials of the matters to which he spoke in evidence he was telling the truth. In particular, and most importantly, he believed the defender's evidence to the effect that he was attracted by the pursuer as soon as he met her, that he wished to be her husband, and that he was initially willing to undergo a religious ceremony, accordingly to Muslim rites, and to live with the pursuer as husband and wife. [16] The proof before Lord Macfadyen has demonstrated beyond peradventure that the defender lied before the Lord Ordinary. Indeed he admitted perjury in relation to a number of factors, including his relationship with Ms K, in a way that, had the Lord Ordinary known the truth, must have been material to the assessment of his credibility and reliability both generally and in relation to his own attitudes and intentions towards the pursuer. However, Lord Macfadyen's positive findings in fact do not relate to events prior to September 1998. The earliest point to which those findings relate was some three months after the ceremony. For the purposes of this reclaiming motion there is no basis for interfering with the Lord Ordinary's findings about the reality of the defender's wish and intention at the time of the civil ceremony to go through appropriate Muslim religious ceremonies at some future date. [17] Between June 1998 and June 1999 the pursuer continued to live at her mother's home in Glasgow and she continued to attend school. During that period the defender stayed with his brother and his family in Stirling. However, both families, including the pursuer and the defender, met regularly during that period for dinner and other social events. The pursuer maintained, in evidence, that during those occasions she was never left alone with the defender. The defender, in his evidence, maintained that there were occasions when they met un-chaperoned. The Lord Ordinary did not resolve this difference. In the light of Lord Macfadyen's findings it is clear that before that period had expired, the defender was already involved with Ms K. [18] It is appropriate at this stage to set out most of Lord Macfadyen's findings following the additional proof. For immediate purposes, the material findings were as follows:|
(1) |
In September 1998 the defender, while working as an assistant in the Chaudry Superstore in Cowie, met Ms K, when she came into the shop as a customer. |
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(2) |
Shortly thereafter the defender invited Ms K to go out with him for dinner in the Omar Khayyam restaurant in Denny. |
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(3) |
Thereafter they saw each other with increasing frequency, several times a week, and a relationship of increasingly close friendship developed between them, involving kissing and other forms of intimacy, but not at that stage sexual intercourse. |
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(4) |
At Christmas 1998 the defender gave a ring to Ms K as a present. |
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(5) |
At the beginning of February 1999 the defender accompanied Ms K to her mother's funeral. |
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(6) |
In about March 1999 the defender told Ms K about his marriage to the pursuer, describing it as a "paper marriage". |
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(7) |
By late spring 1999 the relationship between the defender and Ms K had developed to the extent that they were having sexual intercourse, and he was on occasions staying overnight at her house. |
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(8) |
At some stage in 1999 the defender obtained employment at Sky Television in Dunfermline, where Ms K was also employed, and he continued to work there until about September 2000. |
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(9) |
In April 2000 the defender and Ms K went on holiday together to Blackpool, accompanied by Ms K's younger son and her niece. |
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(10) |
In about October 2000 the defender moved in to stay in Ms K's house, and from then until August 2003 they cohabited there; he contributed financially to the household. |
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(11) |
In December 2000 the defender bought a ring for Ms K, which she chose to regard and to represent to her family and friends as an engagement ring, although the defender never proposed marriage to her; the defender was aware that Ms K regarded him as engaged to marry her, but never suggested to her that she was mistaken. |
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(12) |
In February 2001 the defender went to Pakistan for five weeks to visit his mother, who was ill; no ulterior motive for that visit has been established. |
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(13) |
In the summer of 2001 the defender's parents visited Scotland, and towards the end of their visit were taken by the defender to visit Ms K, although the visit was an awkward and unsatisfactory occasion. |
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(14) |
Ms K was aware of the diets of proof in the present action which took place in February and May 2002, and the defender discussed those proceedings with her. |
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(15) |
In March 2002 the defender and Ms K went on holiday together to Florida; they were again accompanied by Ms K's younger son and her niece; the defender bore the cost of the holiday. |
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(16) |
Shortly after the Lord Ordinary issued his decision in March 2003, Ms K attended a meeting between the defender and his solicitor, in the course of which the defender was advised that if the pursuer appealed against the Lord Ordinary's decision, the appeal was unlikely to succeed "if there was no fresh evidence". |
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(17) |
In the early summer of 2003 the defender and Ms K went on holiday together to Australia; the defender paid for the holiday. |
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(18) |
In the period following that holiday, the relationship between the defender and Ms K deteriorated. |
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(19) |
On 27 August 2003 the defender and Ms K separated. |
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(20) |
The reason for the separation was a dispute over the possibility that the defender might enter into an arranged marriage in Pakistan. |
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(21) |
Following the separation, Ms K contacted the immigration authorities and reported the defender's position to them. |
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(22) |
Following the separation, Ms K also sought out the pursuer's solicitors and offered to them her evidence about her relationship with the defender. |
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(23) |
At various times between August 2003 and early 2004 Ms K falsely represented to Miss Cram, Mrs Hotchkiss and Miss Bell that it was only after her separation from the defender that she had discovered that he was married to the pursuer. |
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(24) |
That the defender lied in his evidence to the Lord Ordinary. |
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(25) |
In particular, the defender's evidence before the Lord Ordinary was false in the following respects: |
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(a) |
It was not true that he met Ms K when he joined Sky Television; he met her in the Chaudry Superstore in Cowie; |
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(b) |
It was not true that their friendship began "sometime after July" 1999; the truth was that they met and became friends in September 1998; |
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(c) |
It was not true that Ms K was never his girlfriend; the truth was that they had a relationship from October 1998 to August 2003, and that from October 2000 to August 2003 they cohabited together. |
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These findings qualify the extent to which one can treat the Lord Ordinary's findings in fact as reliable, so far as they bear on the central issue of the relationship between the pursuer and defender. In particular, in the period referred to in paragraph [17], which the Lord Ordinary considered to be significant in terms of continued family meetings, it is now clear that the defender had entered into a relationship with Ms K which would have been adulterous had he considered himself to be married to the pursuer.
[19] Dealing with the immigration procedures that followed the civil ceremony of 22 June 1998, the Lord Ordinary found that it was necessary for the defender to apply for an extension of stay in the United Kingdom. For this purpose the defender completed an application form (apparently with the assistance of a friend). The document required the applicant to answer a number of questions. The defender admitted, in evidence, that his reply to a number of the questions contained untruths. He signed the application on 21 July 1998. The replies which the defender gave to questions about how the parties had met were not correct. In response to a question which asked "When did you start living together?" the defender wrote "From 22 June 1998 when we married in Stirling". That was, as the defender accepted in his evidence, untrue. In reply to questions regarding the parties' home, the defender replied, "Home owned by my friend who provided us accommodation free of charge (confirmation letter is enclosed)". This was not true. Question 4.11 on the form was to the following effect: "Is your spouse working in the UK". To that the defender replied "Yes". He went on to state that the pursuer was earning approximately £500 per month. Once more he accepted in his evidence that these answers were untrue. On the last page of the form, the pursuer signed a declaration which was to the following effect."I confirm that I am the wife of the applicant. I declare that we are still married, that we are living together as husband and wife and intend to do so permanently. I am aware that it is an offence under the Immigration Act 1971 to make to a person acting in the execution of the Act a statement or representation which the maker knows to be false or does not believe to be true."
Insofar as, in that declaration, the pursuer said that she and the defender were living together as husband and wife it was untrue. In examination-in-chief the pursuer said that she signed the declaration "because at the end of the day my purposes were to marry him and to stay with him so I didn't have no reason not to sign it". Attached to the application form is a manuscript letter 6/5 of process. It bears to have been signed by the defender on 31 July 1998. The defender said, in evidence, that it was in fact written, on his behalf, by a friend, Mr Asjad. It is in the following terms:
"As you required the documents prove financial support in section of the application. I have enclosed bank statements of M Asjad.
I also want to inform you that my wife Saira has bought her own business which she'll take up in first week of Sep. 98. Then I won't require anybody else's help. Any further requirement will be submitted with due respect."
The defender accepted, in his evidence, that the statement about the pursuer having bought her own business was untrue.
[20] The application form was sent off to the Home Office accompanied by photographs of the parties' wedding ceremony on 22 June and their marriage certificate. The Lord Ordinary commented that, in her evidence, the pursuer said that she had gone to Edinburgh with the defender to complete this application which was done before a lady in an office there. The defender, however, contradicted this and said that the visit to Edinburgh actually occurred in October 1999 when he applied for permanent residence. The Lord Ordinary preferred the evidence of the defender. The application for extension of leave was granted by letter from the Immigration and Nationality Directorate, dated 16 October 1998. It granted the defender an extension of an initial period of twelve months, provided certain conditions were fulfilled. The letter also stated:You may apply for the time limit attached to your stay to be removed from shortly before your stay expires ... For the application to be granted, we will need to be satisfied that your marriage has not ended and that you and your spouse both still intend living permanently with each other as husband and wife. If you provide a statement to this effect, signed by you both, this will assist us in considering your application ... If, when you make your further application, you are no longer living with your spouse, your continued stay in this country (including the question of continuing in employment or in business) will normally be subject to your qualifying for further leave in some other capacity under the Immigration Rules. You should therefore explain your current circumstances and make an application accordingly."
That extension of the defender's leave was given on the basis of false information provided by both the defender and the pursuer. However, it is now clear that by that date the pursuer was already being deceived by the defender. By October 1999 the deception was further developed. The parties were hardly in the same position.
[21] The Lord Ordinary found that when the pursuer completed her school education in about June 1999, the defender's elder brother had returned to Pakistan, for what turned out to be a protracted visit. He found that the defender was unwilling to go through a religious ceremony without his brother being present. He was also relying, to some extent at least, on financial assistance from his brother being made available to provide for the cost of celebrating the religious marriage. The pursuer and her mother were, at that time, willing to go along with delay in the religious ceremony taking place. He was satisfied that, at that time, it remained the intention of both parties to live as husband and wife, after they had gone through a religious ceremony. That finding cannot now be treated as based on credible and reliable evidence from the defender. [22] As the official letter of October 1998 showed, the defender's visa was due to expire in October 1999. The defender and the pursuer attended at the office of the Council of British Pakistanis (Scotland) in Edinburgh for the purpose of obtaining assistance in the making of an application for the defender to obtain indefinite leave to remain in the United Kingdom. A letter dated 12 October 1999 from a Mrs Rashida Saeed, project worker with the Council of British Pakistanis (Scotland), addressed to the Immigration and Nationality Directorate, stated that it was written on behalf of the defender who was applying for indefinite leave to remain in the United Kingdom. It referred to 21 enclosed documents which were being forwarded with the letter. These documents included a completed form, SET (M), for indefinite leave to remain in the UK and a full driving licence for the pursuer. Note 4 of the application form stated:"You must provide documentary evidence showing that your marriage subsists such as a formal document showing that you and your spouse live together. For example, we would normally accept that your marriage subsists if you provide five items of correspondence addressed to you and your spouse during the past year from the following sources if they clearly show that you live together at the same address".
"[30] The law that governs this case is, in my judgment, concisely and accurately stated by Clive on Husband and Wife at pp. 07.047 at p. 88-89, after the author has reviewed the authorities in the following terms,
'It is clear from these cases that a purported marriage, even if it is a regular marriage, is void if the parties both regard it as an empty formality and do not consent to become husband and wife. The limitations of this rule should be noted, because there is a danger of two misinterpretations. Firstly it is not the case that a marriage for an ulterior purpose is void. Everything turns on the distinction between an intention to assume the legal relationship of husband and wife and an intention not to get married at all. If the parties intended to get married - to become legally husband and wife - and freely consented to get married, then they will be married, even if their marriage was for a limited purpose and they had no intention of living together or assuming the normal social roles of husband and wife. If they intended not to get married at all, but merely to go through an empty ceremony, they will not be married. It follows that if they intended to get married for a limited purpose, and then get divorced, they will be married, whereas if they intended to go through an empty ritual, an outward form of marriage, and then get a declarator of nullity, they will not be married. Whether parties to a sham marriage will draw this distinction clearly in their minds may be doubted, but it is the crucial distinction. Secondly, it is not the case that a civil marriage is void merely because the parties to it do not regard it as having any religious significance. Such a rule would render null a great many civil marriages, and would be totally unjustifiable. The religious view which parties have of a marriage ceremony is legally immaterial.'
That passage, in my opinion, clearly identifies the real question which has to be addressed and answered in a case like the present and, furthermore, exposes the non sequitur and misconception that bedevilled the pursuer's case. The non sequitur and misconception is as follows - when a man and woman enter a regular marriage but do not, because of their religious beliefs, consider themselves to be married in the eyes of their god, or according to their religion, until they undergo another ceremony of a religious character, the regular marriage is void and has no legal effect. The regular form of civil marriage in compliance with provisions of the Marriage (Scotland) Act 1977, provides for parties, who follow the procedures there prescribed to be regarded, according to the law of Scotland, as husband and wife, with all the legal consequences that flow from that. It has nothing to say about the religious significance, or otherwise, of the parties' relationship."
It is the validity of that approach that lies at the root of this reclaiming motion.
[29] The Lord Ordinary's gloss on Professor Clive's commentary, that the regular form of civil marriage in compliance with the 1977 Act provides for parties who follow the prescribed procedures to be regarded, according to the law of Scotland, as husband and wife, with all the legal consequences that flow from that, provides an appropriate starting point for considering whether in Scots law marriage has become a matter of form, effected where prescribed procedures are followed, including the use of appropriate language, with all the consequences the law provides, or involves matters of substance that go to the root of the marriage relationship that may be absent notwithstanding formal compliance with the prescribed procedural requirements. [30] Section 3 of the 1977 Act provides for the completion by each party and submission to the registrar of a notice of intention to marry in prescribed form which, at the material time, was set out in the Marriage (Prescription of Forms) (Scotland) Amendment Regulations 1995, SI 1995 No 3156. Section 19 of the Act sets out a number of requirements for the solemnisation of marriage by an authorised registrar. These include the provision of a completed marriage schedule in prescribed form: sections 19 (2) and 6. At the material time the form was contained in the Registration of Births, Still Births, Deaths and Marriages (Prescription of Forms) (Scotland) Amendment Regulations 1995, SI 1995 No 3157. The marriage schedule set out details of the parties' family relationships, occupational backgrounds, and the date and place of marriage. The marriage notice contained the same information, but, of potentially greater importance, provided for a number of solemn declarations by each party, including:"(2) I and the person named in Part F intend to be married on the date and place entered."
The procedures initiated by the notice of marriage, and culminating with the registration of the marriage, therefore proceed on a declaration of intent to enter into marriage.
[31] However, neither the Act nor the regulations defined marriage, nor did they prescribe the consequences of marriage, apart from the following provisions. Section 19 (3) provided:"Immediately after the solemnisation of the marriage the Marriage Schedule shall be signed by the parties contracting the marriage, by both witnesses present thereat and by the authorised registrar who solemnised it."
Sub-section (4) provided for entry of the particulars from the schedule to be entered in the register of marriages. Section 23A provided, subject to immaterial exceptions:
" ... where the particulars of any marriage at the ceremony in respect of which both parties were present are entered in a register of marriages by or at the behest of an appropriate registrar, the validity of that marriage shall not be questioned, in any legal proceedings whatsoever, on the ground of failure to comply with a requirement or restriction imposed by, under or by virtue of this Act."
The 1977 Act and the regulations made under it are, with the exception of the declaration of intent in the marriage notice, concerned wholly with procedural regularity. The Act followed on the recommendations of the Kilbrandon Committee on The Marriage Law of Scotland (Cmnd 4011), which was set up to inquire into requirements, both fundamental and formal, for the constitution of marriage in Scotland. The omission of a prescriptive definition of the essentials of marriage was no doubt deliberate.
[32] The declaration in the marriage notice, in my view, is similarly a procedural requirement, as vulnerable to dishonest and fraudulent circumvention as the exchange of words of promise at the ceremony itself. Mr Hayhow referred in the course of his submissions to section 9 (3) of the Act, which prescribes the minimum content of marriage celebrated by nominated celebrants. He did not suggest that the issue of definition was determined by the 1977 Act. But the terms of the sub-section are not without significance. Section 9 (3) provides the only indication of the essentials of marriage that one finds in the 1977 Act other than procedural formalities. It requires the use of language that includes and is in no way inconsistent with:"(a) a declaration by the parties ..., that they accept each other as husband and wife."
That is, in cases covered by the sub-section there must be a declaration, de praesenti, that the parties, there and then, accept each other as man and wife.
[33] The more recent of the decisions referred to demonstrate that in modern jurisprudence that declaration is not entirely a matter of form. If it were, the notion of a sham marriage, as discussed by Professor Clive, which comprised the exchange of words of consent along with compliance with the formal requirements of notice, completion of the marriage schedule and registration, would be at least circumscribed if not rendered wholly irrelevant. In most cases, formal procedural regularity would foreclose all inquiry into substance. In Orlandi Lord Cameron expressed the view that it was competent to found on the absence of consent for the purpose of setting aside a marriage regularly celebrated (pages 120-121). In Akram Lord Dunpark agreed (page 88). In Mahmoud, Lord Kincraig applied Orlandi (page 18). It will be necessary to return to these cases in some greater detail. But they represent a settled view of the law that formal compliance with the procedural requirements of regular marriage is not conclusive of the contraction of a valid marriage. [34] In the fourth edition of his book, Professor Clive deals with the definition of the fundamentals of marriage only in relation to the recognition of foreign marriages. In paragraph 09.002, he writes:"In the domestic law there is no difficulty in deciding whether a particular form of union is to be recognised as a marriage, although there may sometimes be difficulty in deciding whether a marriage has been validly entered into. In cases with a foreign element there may be difficulty in deciding whether a union, admittedly entered into, should be recognised as a marriage. The traditional definition of a marriage is 'the voluntary union for life of one man and one woman, to the exclusion of all others', but this is serviceable only if qualified in several respects."
The several respects include, obviously, the possibility of dissolution prior to death. But the commentary proceeds:
"Secondly, it is only certain types of union which will be recognised as marriage. The class of union must involve some legal rights or obligations or, put another way, must confer some defined status."
In order to ensure logical consistency, the pre-conditions of recognition of foreign marriages must reflect the essentials of marriage in Scots law. One can, therefore, infer that, in Professor Clive's view, in Scots law marriage remains the voluntary union of one man and one woman, for an indefinite period, ending with death or earlier dissolution, to the exclusion of all others, that involves legal rights and obligations and confers the legal status of husband and wife. That is what is necessarily implied in the expression 'accept each other for husband and wife' in section 9 (3) of the Act. Such a definition is consistent with the statutory code.
[35] I agree with the Lord Ordinary that it is necessary to formulate as clearly as possible the issue that arises in this case. That involves distinguishing and setting aside what appear to be potentially misleading approaches. Parties' motives in entering into a marriage are not a determinative factor: McLeod v Adams. With that I agree. The more perverse a party's motive, the more likely that person is to assert the validity of the marriage. For example, a person who contracts marriage with a view to obtaining the other party's property by inheritance, for that party's own benefit or the benefit of others such as his or her own children, will succeed if and only if the marriage is valid and binding on both parties. The unworthy motive, if such it be in the particular circumstances, would not detract from the genuineness of that party's declaration of matrimonial consent. But it does not follow that in an appropriate case, where it might be shown that there was no intention to take the other party as spouse, evidence of the motive could not provide an adminicle of proof that the unworthy person lacked true matrimonial consent. [36] Again, it is said by Professor Clive, of the cases of Mahmoud and Akram:"Both these cases, however, proceeded on the finding that in fact the parties did not consent to be married at all. It should not be assumed that the same finding of fact would necessarily be made in other cases involving parties with a religious contempt for civil marriage. The evidence in such cases might well lead to the conclusion that the parties intended to be married for the purposes of the civil law even if they did not regard themselves as married for religious purposes. Indeed, given the presumption in favour of the validity of a regular marriage and the presumption that the parties intend the normal and natural consequences of their acts, it would take very convincing and unequivocal evidence to justify any other conclusion."
A distinction has to be drawn between two quite different cases. In the first, the parties may enter into civil marriage knowing that their religion will not recognise the relationship as marriage, but nevertheless genuinely exchange consent to be man and wife. In contemporary society, a canonical objection to a valid marriage between two committed Roman Catholic parties might not dissuade them from entering a civil marriage with unqualified consent to take each other as man and wife. Orlandi demonstrates that nevertheless there may be cases in which the religious convictions of the parties may affect the consent exchanged in a regular marriage ceremony to the extent of wholly undermining it. MacDougall v Chitnavis suggests that a similar situation could arise in relation to a marriage between a Hindu man and a non-Hindu woman. Whether it did would depend on the cogency of the proof offered that the formal exchange of consent lacked reality to the degree required. The religious position of the committed adherent would not be irrelevant to the question whether there was true matrimonial consent.
[37] The true issue in this case, in my opinion, is whether on the evidence that can be relied on, and the facts that can be deduced from that evidence, the parties exchanged matrimonial consent on 22 June 1998, given that they undeniably went through a regular ceremony of marriage, which individually they understood, and which they understood would be regarded as constituting marriage by Scots law for the purposes they had in mind. [38] Before returning to that issue, it is appropriate to deal with the issues of personal bar, or more appropriately public policy, that were debated. Before the Lord Ordinary procedural objections to his entertaining the defender's plea of personal bar arose. These submissions were not renewed before this court. Mr Heyhow relied on the substance of Lord Dunpark's observations in Akram. There can be no doubting the strength of Lord Dunpark's views. They are reflected in the passage quoted by the Lord Ordinary from page 89:"That still leaves the vexed question of whether it is right to allow parties, who have voluntarily participated in a civil ceremony of marriage provided by Scots law in the full knowledge of its legal effect, to have that ceremony declared null and void on the ground that their religious faith did not recognise a civil ceremony. In presenting themselves to a marriage registrar for marriage when they do not intend marriage, they are deceiving the registrar and abusing the law. I have found that the law permits itself to be abused in this way, and I cannot change it. It must be for Parliament to decide whether this abuse should be made a statutory offence or whether legislation should preclude parties from challenging the legal effect of any formal ceremony of marriage on the ground that they knowingly but tacitly withheld their true consent to marriage."
"To call such an institution as this a contract, is simply to ignore almost every material element of it, and to overlook its history in all ages and countries. Marriage is a contract, in so far as it requires the consent of two persons, but it is very much more than this. It is an institution or status."
"One source of error as to the legal character of marriage has arisen from the misapplication of the maxim, that consent and not coitus makes marriage. This has been interpreted to mean, that consent, in whatever mode given, makes marriage ... The doctrine merely amounts to this, that consent being given to marriage as the law directs, that is sufficient. The matrimonial consent passing between parties makes a marriage in Scotland and England, and everywhere else, whatever the forms and ceremonies necessary to constitute a marriage may be, because it must be understood that the matrimonial consent is consent to marriage, expressed in the form an manner that the law requires. The contract is constituted by consent alone; but it must be consent to marriage; and the law determines what shall import such consent, and what shall be sufficient expression of consent to bind parties."
The italicised words reflect Lord Fraser's emphasis.
[47] Lord Fraser's idea of marriage, based on a Christocentric analysis certainly, but in my view not materially affected by that, is expressed at page 162:"What then, is the nature of this institution ...? Its incidents vary in different countries, but what are its essential elements and invariable features? If it be of common acceptance and existence, it must needs (however varied in different countries in its minor incidents) have some pervading identity and universal basis. I conceive that marriage, ... , may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others."
With inconsequential modifications, so far as this case is concerned, Professor Clive is content to accept that as the traditional view. In my opinion it remains a valid statement, subject to the modifications already mentioned. It is of the essence of marriage that each party takes the other as husband and wife respectively in that sense de praesenti and for the indefinite future.
[48] The recent decisions referred to are consistent with that view. In Orlandi v Castelli, Lord Cameron, allowed a pursuer a proof before answer. The critical averments of the pursuer, for present purposes, are found in his opinion at page 115:"On 4th April 1956 the pursuer and defender went through a formal ceremony of marriage in the registry office of the Kelvin district of Glasgow. Both the parties were Roman Catholics and neither of them regarded the ceremony in the registry office as a marriage. As Roman Catholics they had no matrimonial purpose in connexion with the said ceremony. They both intended that, if they were to be married, the marriage would take place in a chapel. The ceremony in the registry office was not intended by the parties to be a marriage. The formal consent which they interchanged was not exchanged with a view to constituting a marriage, but was exchanged in an attempt to induce the Home Office to allow the defender to remain in this country, or, in any event, to return to this country after leaving it at this time. At the said ceremony real and actual consent to marriage was withheld by both parties."
In presenting the facts in this way, Lord Cameron identified a distinction between the formal ceremony, involving as it did an expression of mutual consent to take the other as spouse, from the reality of the parties' intentions. The Lord Advocate contended that the pleadings showed that all the essentials of a valid contract of marriage were present, namely an intelligent and voluntary consent to marriage, competent age, and physical capacity, and agreement that all of the formalities required by the current Marriage (Scotland) Act were complied with. The issue between formal and substantial validity was clearly identified. It is clear that the motive identified by the pleadings could not have been realised by anything short of celebration of a full and ex facie regular 'marriage'.
[49] It is against that background that one must consider the discussion of the law in Lord Cameron's opinion, and, in particular, his adoption of Fraser's view quoted on page 120:"The essential in every marriage is the consent of the parties to its constitution. This may be directly given, or inferred from circumstances. That whether the marriage is regular or clandestine; whether by a clergyman after due proclamation of banns, or by consent de praesenti without such formality; whether inferred from promise cum copula or co-habitation with habit and repute - there must be consent freely and voluntarily given; it must be serious, and with the intention to enter into marriage; otherwise the proceedings of the parties, though outwardly formal, is held wholly ineffectual in law to constitute the contract. The consent alleged may be a sham or a pretence, or it may be inefficacious, as having been extorted by force; or it may be tainted by error or fraud; and thus an apparently formal marriage may be set aside as a nullity."
As is clear from the passages already quoted from Fraser in paragraph [46], and in particular the emphasis placed on the italicised words in the text, this passage is to be understood as referring to consent exchanged with the intention to enter into marriage in substance. It is clear that that is the sense in which Lord Cameron understood the passages when he went on to say, as the Lord Ordinary has quoted:
"In my opinion, this is the correct view of the matter, and where it can be established that there has been no true matrimonial consent, and that the ceremony was only designed as a sham or as an antecedent to true marriage, it is competent to found upon that absence of consent for the purpose of setting aside a marriage regularly celebrated." And:
" ... the pursuer is well-founded in contending that, if she is able to demonstrate by sufficient evidence that there was no real consent to marriage on the part of herself and the defender Castelli, she would be entitled to the remedy which she seeks."
"To constitute marriage there must be consent voluntarily and seriously given to enter into marriage. If it be proved that such consent was not given, an apparently formal marriage, as this one was, may be annulled (see Fraser, Husband and Wife, Vol. I at p. 435).
In Mahmud Lord Kincraig expressed the same view, at page 18:
"I am satisfied on the evidence adduced in this case that the pursuer, because of her religious beliefs, did not truly consent to be married to the defender when she went through the ceremony before the registrar. Both parties conducted themselves before the ceremony in accordance with the religious customs of the faith to which they both belonged, applying to persons about to be married, and it was clearly understood between them that in due course they would participate in a religious ceremony before they would be regarded as man and wife. The pursuer believed that she would not be truly married until there had been a religious ceremony conducted in accordance with the tenets of the Moslem faith. Her appearance before the registrar was solely to comply with the formalities of Scots law as to the constitution of marriage in Scotland, and her consent was given before the registrar in that belief. She did not agree to be married by that procedure."
" ... although it is consent and not consummation which 'makes marriage', the consent required must follow from an act of the will which is directed towards constituting the consenting parties de praesenti man and wife ... "
On the facts he said:
"It is proved, moreover, that the parties separated on the conclusion of the ceremony and have consistently thereafter lived apart. If matrimonial consent had been interchanged, this circumstance would not be relevant; but so long as the de quo quaeritur is whether or not the parties consented to marry, I regard this circumstance as highly material."
"[31] The evidence, in the present case, overwhelmingly demonstrated, what I have already indicated, namely that, as at 22 June 1998, both the pursuer and the defender wished to be man and wife. Moreover they wanted to be so held, from that date, according to the law of Scotland. That is why they went through the ceremony in question. That is why they and their relatives and friends marked its significance, in the various ways I have described. I have no doubt, at all, that the pursuer and her mother, for their sincerely held religious beliefs, did not regard that ceremony as the equivalent of a religious marriage. I have no difficulty in accepting their evidence that, as far as their religion was concerned, it was not a valid marriage, but sitting as a judge in a secular court what I have to decide is whether or not it was a valid civil marriage. To answer that question I have to ask myself whether the pursuer and the defender on 22 June 1998, at the ceremony in Stirling, intended to be married for the purposes of the civil law. On the facts of this case, as I have found them, that question has to be answered in the affirmative. I am, accordingly, unable to find that the marriage was, as it is described in the declarators sought, "a pretended marriage", nor can I hold that it was void."
In my opinion, that paragraph confuses a number of issues. There is no doubt that the parties wished it to be understood that the registry office ceremony was a formal marriage: their subsequent dishonest representations would have failed in limine if they did not achieve that result. But the critical question is whether they intended to become husband and wife. Their religion undoubtedly informs the background to a resolution of that question: religious Muslims do not become man and wife without due observance of the ceremonial requirements prescribed by their religion. They do not live together prior to those ceremonies because they have not entered into the state of marriage.
[54] At the end of the hearing, Ms Clarke drew our attention to the recently reported English case of Sheffield City Council v E & Another [2005] 2 WLR 953. In that case, Munby J had to consider a wide range of issues relating to marriage in English law, and in particular relating to capacity to contract marriage. That involved a discussion of the fundamental nature of matrimonial consent. Beginning at paragraph 68, he said:"68. The law, ... , can be summed up in four propositions. (i) It is not enough that someone appreciates that he or she is taking part in a marriage ceremony or understands its words. (ii) He or she must understand the nature of the marriage contract. (iii) This means that he or she must be mentally capable of understanding the duties and responsibilities that normally attach to marriage. (iv) That said, the contract of marriage is in essence a simple one, which does not require a high degree of intelligence to comprehend.
69 There are thus, in essence, two aspects to the inquiry. The first is whether the person understands the nature of the marriage contract. But this, as the authorities show, merely takes up to the central question: does he or she understand the duties and responsibilities that normally attach to marriage. This in turn leads on to two further questions. (i) What are the duties and responsibilities that normally attach to marriage? In other words, what are the essential attributes of the contract of marriage that the person has to be mentally capable of 'understanding'?"
The second question is not material for present purposes. But in relation to the first, the Family Division judge had clearly to grapple with the same central issue as arises in this case.
[55] From an extended examination of the authorities, it is enough to observe that at the forefront he placed Lord Penzance's definition in Hyde v Hyde (1866) LR 1 P&D 130, which is cited by Fraser and by Clive, that marriage is 'the voluntary union for life of one man and one woman, to the exclusion of all others' as lying at the centre of the issue of definition of the substance of marriage. At paragraph 132, he says:"What then are the duties and responsibilities that in 2004 should be treated as
normally attaching to marriage? In my judgment the matter can be summarised as follows. Marriage, whether civil or religious, is a contract, formally entered into. It confers on the parties the status of husband and wife, the essence of the contract being an agreement between a man and a woman to live together, and to love one another as husband and wife, to the exclusion of all others. It creates a relationship of mutual and reciprocal obligations, typically involving the sharing of a common home and a common domestic life and the right to enjoy each other's society, comfort and assistance."
In my view that is a helpful statement of the position for the purposes of Scots law. It is implicit in this definition that there may be marriages that do not exhibit all of the characteristics listed by Munby J. Departures from the norm are not excluded. But the stage may come at which the nature and extent of the derogation from the norm leaves a relationship that simply cannot be described as marriage. Where one would draw the line, it is unnecessary for present purposes to say. It may be undesirable to attempt any precise definition for general application. Mr Hayhow was correct in placing emphasis on the variability of parties' particular relationships. The scope for variety between traditional marriage and no marriage must be wide, if not infinite, and it may be that it is only where one can find a situation approaching a universal negative that any safe decision can be reached that the celebration of regular marriage, or the finding of facts pointing towards the constitution of irregular marriage, does not constitute marriage.
[56] In my view, however, an agreement that the parties will not become husband and wife in any real sense until some further condition is satisfied in the indefinite future is not a marriage. It might be betrothal. But what is material is that where parties have agreed that, notwithstanding the exchange of words of consent, the relationship that the language used would normally establish will not be established between them, the proceedings are sham, and should not be recognised. I would allow this reclaiming motion and grant decree as concluded for. I would also move your Lordships to report the whole proceedings to the Lord Advocate for consideration whether criminal proceedings should be initiated.
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Penrose Lord Macfadyen Lord Marnoch
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[2005CSIH70] A867/01 OPINION OF LORD MACFADYEN in RECLAIMING MOTION by S.H. Pursuer and Reclaimer; against K.H. Defender and Respondent:
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Act: Clarke; Balfour & Manson (Pursuer and Reclaimer)
Alt: Hayhow; Digby Brown (Defender and Respondent)
13 October 2005
[57] I agree that for the reasons given by your Lordships the reclaiming motion should be allowed, and decree of nullity of marriage pronounced. [58] I also agree that, in the light of the circumstances disclosed both in the evidence given in the course of the proof before the Lord Ordinary and in thesupplementary evidence which I heard, it is appropriate that the papers in the case be sent to the Lord Advocate.
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EXTRA DIVISION, INNER HOUSE, COURT OF SESSION |
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Lord Penrose Lord Macfadyen Lord Marnoch
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[2005CSIH70] A867/01 OPINION OF LORD MARNOCH in RECLAIMING MOTION in the cause S.H. Pursuer and Reclaimer; against K.H. Defender and Respondent: _______ |
Act: Clarke; Balfour & Manson (Pursuer and Reclaimer)
Alt: Hayhow; Digby Brown (Defender and Respondent)
13 October 2005
[59] This is a reclaiming motion against an interlocutor of the Lord Ordinary whereby he refused to grant decree of nullity of marriage. [60] The parties underwent a civil ceremony in compliance with the Marriage (Scotland) Act 1977 on 22 June 1998 and the ratio of the Lord Ordinary's decision, as it seems to me, is that on that date both parties "intended to be married for purposes of the civil law". On that basis the Lord Ordinary distinguished a line of cases in which the evidence disclosed that the parties, despite going through such a ceremony, did not truly intend to be man and wife, with the result that the marriage was held to be null and void. In this connection, it was accepted on both sides of the Bar that going through the ceremony was not itself conclusive, since it was no more than the outward manifestation of the mental or contractual element which was essential for a valid marriage: see Clive on Husband and Wife, 4th ed. at p. 51. While the existence of that element would normally be presumed, the presumption was rebuttable. [61] I am, for myself, satisfied that the concessions just noted were properly made. It is, in my opinion, abundantly clear that under the present law the going through a ceremony of marriage as now prescribed by the Marriage (Scotland) Act 1977 is not itself conclusive of a valid marriage. On the contrary, if it can later be shown that the marriage vows were in some way a "sham" or that the consent of parties was to something other than marriage, as understood by Scots law, such an apparent marriage can be, and in the past frequently has been, declared null. It may be that with different historical foundations other jurisdictions take a different approach and it may be, also, that there is an urgent need for the Scottish Law Commission to examine this whole area of the law which is obviously open to possible abuse. But, however that might be, the present law is, in my opinion, clear and I cite in support of that opinion Clive, ibid. at p. 86, para. 07.043 et. seq.; the several authorities there cited, being those which the Lord Ordinary sought to distinguish; Fraser on Husband and Wife vol. I, 415; Ferguson, Consistorial Law (1829) p. 105, and More's Notes to Stair's Institutes at p. xiii et. seq. [62] I now turn to consider what I conceive to be the real question in the present case, namely the question of whether, on 22 June 1998, there was present consent to a state of marriage between the parties. I emphasise the phrase "present consent" because, as is made clear in Stair's Institutes 1.4.6,"It is not every consent to the married state that makes matrimony, but a consent de praesenti, and not a promise de futuro matrimonio: for this promise is only the espousals ... ".
"In marriage, the parties bind themselves to live together till death part them; and the material obligation may be enforced by an action called an action of adherence".
Although, since 1984, decree ordaining adherence is no longer granted, it is clear that that obligation remains the underlying rationale of the modern action for aliment.
[64] The difficulty which then arises for the defender and respondent in the present case is that it is common ground that there was, as matter of fact, to be no shared life or living together of any sort following the ceremony on 22 June 1998 and, in that regard, I can do no better than refer to the following passage which commences half way through para. [7] of the Lord Ordinary's Opinion:"At the engagement party there was discussion about the parties' future marriage. The pursuer and her mother did not wish the pursuer to live in Pakistan nor did they wish her education to be interrupted. She was at that time, hoping to go to university. It was, however, appreciated that the defender would require to return to Pakistan on the expiry of his six months visa in or about August 1998, unless he could obtain an extension to the visa. One way of obtaining an extension to his visa would be if he were to satisfy the immigration authorities that he had married the pursuer and that they were living together as husband and wife. The pursuer, and her family, agreed that, in the circumstances, the parties should, in early course, go through a civil wedding ceremony. Thereafter the pursuer and the defender would not live together as husband and wife until they went through a religious ceremony, or ceremonies, whereby, according to the Muslim faith, they became husband and wife.
[8] The foregoing agreed arrangements suited both parties for their own respective reasons. It would enable the pursuer to continue and complete her school education and to go to university in Glasgow. The defender would continue to live in Stirling with his family. He wanted to have some time either to obtain employment or set up a business to put himself in a more financially secure position."It is clear that the foregoing arrangements were adhered to and that there was at no time any sexual contact between the parties. Whether or not there was an occasional un-chaperoned meeting between them seems to me to be unimportant and I do not consider that the additional evidence led before Lord Macfadyen materially alters the position in that regard.
[65] In the situation as summarised above I am of opinion that it simply cannot be said that at the ceremony on 22 June 1998 there was any present consent to a state of matrimony. It is true, no doubt, that on the Lord Ordinary's findings both parties, on that date, envisaged that there would come a time when they would live together as man and wife; but that was wholly dependent on the religious ceremony in which, in the event, the defender and respondent declined to participate. What is more, it was conceded by his counsel - I believe correctly - that the defender and respondent could not have been compelled by the court to undergo that ceremony. That being so, I am also unable to accept the fall-back submission of counsel for the defender and respondent to the effect that the proviso anent the religious ceremony taking place could somehow be seen as the equivalent of some proviso that the parties would not actually share the same roof pending the purchase of a matrimonial home. The latter sort of proviso would certainly not preclude a sexual union taking place and might, I think, in any event, be enforced by the court. The proviso anent the religious ceremony, on the other hand, was, as it seems to me, wholly suspensive of any form of cohabitation, union or shared life between the parties. In the result, therefore, and differing from the Lord Ordinary, I consider that on a proper analysis the present case is indistinguishable from Akram v. Akram 1979 S.L.T. (Notes) 87 and Mahmud v. Mahmud 1977 S.L.T. (Notes) 17, both of these, in my view, having been correctly decided. It is also, I believe, indistinguishable from the much earlier decision in Brady v. Murray 1933 S.L.T. 534. [66] As your Lordship in the chair has mentioned, subsidiary arguments were deployed in the course of the debate anent what was termed "personal bar" but what is more accurately described as "public policy". I respectfully agree with your Lordship's observations on these matters and, in doing so, refer, in particular, to what is said in Fraser on Husband and Wife at vol. I, p. 434. [67] For all the foregoing reasons I agree with your Lordship in the chair that this reclaiming motion succeeds, that the interlocutor of the Lord Ordinary should be recalled, and that the pursuer's second plea-in-law should now be upheld to the effect of pronouncing decree of nullity of marriage as concluded for. I also agree that in the circumstances more fully described in the Opinion of your Lordship in the chair the papers should now be sent to the Lord Advocate.