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SB v Secretary of State for Work and Pensions (BB) (Bereavement and death benefits : bereavement payments) [2014] UKUT 495 (AAC) (22 October 2014)

IN THE UPPER TRIBUNAL Appeal No. CG/4295/2013

(ADMINISTRATIVE APPEALS CHAMBER)

BEFORE JUDGE WEST

DECISION

The decision of the appeal tribunal sitting at Sheffield dated 15 August 2013 under file reference SC147/13/01030 involves an error on a point of law. The appeal against that decision is allowed and the decision of the appeal tribunal is set aside.

The decision is remade. The claimant was validly married to the deceased on 7 January 1986 and is entitled to bereavement benefit on his death. The Secretary of State must now pay the full amount of the arrears of bereavement benefit due to the claimant at the earliest opportunity and make an ongoing award of bereavement benefit in accordance with the claimant’s entitlement to that benefit.

This decision is made under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

REASONS

1. This is an appeal, with the permission of Tribunal Judge Good, against the decision of the appeal tribunal sitting at Sheffield on 18 August 2013.

2. I shall refer to the appellant hereafter as “the claimant”. The respondent is the Secretary of State for Work and Pensions. I shall refer to him hereafter as “the Secretary of State”. For ease of reference, both in the short formal decision which I gave in September and in this longer fully reasoned decision, I shall refer to her husband as “the deceased” and the woman who was purportedly his first wife as “MB”. I shall refer to the tribunal which sat on 18 August 2013 as “the appeal tribunal”.

The History of the Claim

3. The claimant, who was born on 1 January 1961, made a claim for bereavement benefit on 22 May 2013 following the death of the deceased on 11 March 2012. She appealed through her representative, Ms Marie Buswell of Howells Solicitors in Sheffield, against the decision dated 2 November 2012 that she was not entitled to bereavement benefit because the marriage between the deceased and the claimant on 7 January 1986 (in Sairi in the Kotli District of Azad Kashmir and which had resulted in the birth of three children) could not be accepted as valid for social security purposes and accordingly bereavement benefit was not payable to her (pages 36 to 37).

4. Her appeal, which was made on 28 November 2012 and received on 3 December 2012 (pages 2 to 5), came before the appeal tribunal on 18 August 2013. The decision had been reconsidered, but not revised, on 7 January 2013 (page 77). The appeal had first been scheduled for hearing on 13 May 2013, but was adjourned because the claimant’s interpreter did not attend the hearing (pages 59 to 61). The claimant attended the rescheduled hearing and gave evidence through her interpreter. The appeal was dismissed. The record of proceedings appears at pages 74 to 77. The notice of decision appears at page 78. The appeal tribunal’s statement of reasons appears at pages 80 to 82. In summary, the appeal tribunal held that the deceased had been validly married in Pakistan to MB on an unknown date between 6 February 1956 and 11 November 1960, that his subsequent attempt to divorce MB by talaq over the telephone was invalid and that he remained married to her, that he was consequently not free to marry the claimant and that therefore the claimant was not entitled to bereavement benefit on his death.

5. The claimant then sought permission to appeal from the Tribunal Judge on 24 September 2013 (pages 83 to 84), which was granted by Tribunal Judge Good on 8 October 2013 (at page 85). She also notified the Upper Tribunal of the appeal on 31 October 2013 (pages 89 to 95).

6. Given that permission to appeal had already been granted, Judge Thomas in the Upper Tribunal gave directions on 30 January 2014 (at page 96). He directed the Secretary of State to provide a response to the appeal within one month after the date on which the notice of the directions was sent to the parties and for the claimant to reply within one month thereafter.

7. On 5 March 2014 the Secretary of State provided his submissions (pages 99 to 104). He accepted that the appeal tribunal had erred in law and agreed that the decision of the appeal tribunal should be set aside. He submitted, however, that the decision should not be remitted, but remade by the Upper Tribunal on the basis that the marriage between the deceased and the claimant was void under section 11(d) of the Matrimonial Causes Act 1973. The appeal should therefore be dismissed. In reply the claimant made a submission provided by Tom Royston of Garden Court North on 11 April 2014 (pages 112 to 120). He submitted on her behalf that the appeal should be allowed on the basis that

(a) there was no adequate evidence for the appeal tribunal’s conclusion that the deceased and MB were ever married

(b) the appeal tribunal gave inadequate reasons for its conclusion that the deceased and MB were ever lawfully married

(c) the appeal tribunal gave inadequate reasons for its conclusion that the marriage of the deceased and MB was (because the deceased was domiciled in Pakistan and therefore could contract a valid marriage remotely) valid for social security purposes

(d) the appeal tribunal’s treatment of the question whether MB had died was procedurally unfair.

8. The Secretary of State did not seek an oral hearing because he said that the decision of the appeal tribunal should be remade, but that the appeal should nevertheless be dismissed. The claimant contended that the appeal should be allowed or remitted for rehearing before a new tribunal. She only requested an oral hearing if the Upper Tribunal did not agree that the appeal should be either allowed or remitted. In that event the claimant sought an oral hearing or, at the very least, an opportunity to make further written submissions as to how the decision should be remade. Given the concession subsequently made by the Secretary of State and the decision which I made on 26 September 2014 I did not consider that it was necessary to hold an oral hearing to resolve the matter.

The Directions of 14 May 2014

9. It seemed to me, however, that the real question at issue was whether the deceased had ever been married to MB at all. Accordingly, when the matter came before me on 14 May 2014, I made further directions that the Secretary of State should provide a response on the question of the applicable lex loci celebrationis of the marriage of the deceased to his first wife and in particular whether the formal validity of the marriage was governed by the laws of both England and Pakistan and the impact on that question of the decision of Lord Stewart in A v. K [2011] CSOH 101, 2011 SLT 873 within one month of the date on which the notice of the directions was sent to the parties. I directed the claimant to provide a reply to the response within one month after the date on which the response was sent to her and reserved the matter to myself.

10. I gave the following reasons for those directions:

“1. In its original advice to the Secretary of State (which the Secretary of State adopted) the Relationship Validation Unit stated that

“[The deceased] was married twice. His first marriage was to [MB] on an unknown date between 06 February 1956 and 11 November 1960 in Pakistan.

This marriage was contracted over the telephone on an unknown date between 06 February 1956 and 11 November 1960. At the time of the marriage, [the deceased] was resident in the United Kingdom and [MB] was resident in Pakistan. The law of the UK does not allow for marriages to be contracted here by proxy or over the telephone. However, the laws of certain other countries (in this case Pakistan) can recognise such a form of marriage as valid, proved it is contracted in that country.

The formal validity of a marriage is to be determined exclusively according to the law of the place where it is celebrated; the domicile of the parties is irrelevant. It therefore follows if a telephonic marriage can be said to have been celebrated in a country which recognises such marriages, we cannot deny that the marriage is valid for our purposes.

Where marriage has been celebrated will be a question of fact in each case, but in cultures which regard marriage as consisting of an offer by the man which is accepted by the wife, the marriage will probably take place where the wife is situated.

From the available evidence [in] this case we would have to accept that [the deceased] and [MB] did enter into a contract of marriage that would have been valid under the law of Pakistan. The marriage would be recognised as valid in Pakistan and so can also be recognised as a valid marriage in the UK”.

2. The correctness of that exposition of the law was accepted by the claimant prior to the hearing on 15 August 2013.

3. However, it is arguable that the formal validity of a telephone marriage is governed by the laws of each of the two countries in which the spouses are at the time of the ceremony and that in order to be valid such a marriage must be valid under both English law and Pakistani law.

4. In that respect the parties are referred to Dicey, Morris and Collins: The Conflict of Laws (14th ed., London, 2006, Vol.2, para.17–013 and 15th ed., London, 2012, Vol.2, para.17–016).

5. The question was left open in KC v. City of Westminster (reported sub nom. Westminster City Council v. C [2009] Fam 11, but Thorpe LJ said in the Court of Appeal:

“40. In the case of marriages contracted by a transnational telephone call the ascertaining of the place of celebration is likely to involve difficult problems of great legal significance. There are public policy issues. The French Civil Code was amended in 1993 to add a new article 146(1): “The marriage of a French person, even where contracted in a foreign country, requires his presence.” The reason for this was to deal with problems arising from marriages of convenience celebrated by proxy in Morocco and Algeria.

41. One obvious reason why the place of celebration may be legally significant is that one contracting party may escape the rules as to the formation of marriage applicable in that jurisdiction. More than 60 years ago it was decided that recognition of a marriage by proxy in a foreign country was not contrary to English public policy: Apt v. Apt [1948] P 83. But these courts have not had to consider a marriage by telephone with one spouse in country A and the other in country B. It is for English law to determine where is the place of celebration. It may be in country A, or in country B. Some foreign authors suggest, in the case of proxy marriages, that it should be regarded as celebrated in both countries, thus requiring compliance with the formalities of each: Rabel, Conflict of Laws, 2nd ed (1958), vol 1, pp 243–244.

42. In this court there was no investigation nor any argument as to the place of celebration. I would not wish to be taken to endorse whatever consensus was reached between the parties to the effect that the marriage was celebrated in Bangladesh. The important questions of law and public policy which arise must be left for decision in a case in which they arise and in which there is adequate evidence of the foreign law relating to the incidents of the marriage ceremony.”

6. There is a decision on the point of Lord Stewart in the Outer House of the Court of Session in A v. K [2011] CSOH 101, 2011 SLT 873, although it is not binding on the Upper Tribunal and there was no adversarial argument on the point.

7. The submissions of the Secretary of State do not address this question since they are predicated on the basis that the marriage took place in Pakistan. The latest submissions of the claimant assert that the question was left open by KC, but that the advice given by the IDI is correct. That submission does not, however, deal with either the decision in A v. K or the rather different guidance given in the United Kingdom Border Agency Entry Clearance Guidance for settlement in the United Kingdom applications, SET03 — Spouses. SET 3.17 Marriage by Telephone provides:

“A telephone marriage is one where the exchange of vows or other marriage contract takes place over the telephone … A telephone marriage celebrated whilst one of the parties is in the UK is not valid. This is because telephone marriages are not valid in the UK … For cultures where marriage consists of an offer made by a man and accepted by a woman, the marriage is considered as taking place in the country where the woman is. If the woman is resident in the UK then a telephone marriage is not valid. If the woman is resident in a country where telephone marriages are valid then a telephone marriage may be valid.”

8. In the light of the comments by Thorpe LJ, and in particular the legal significance of the decision and the issues of public policy involved, the parties should therefore direct submissions to the question of the applicable lex loci celebrationis of the marriage of the deceased to his first wife and in particular whether the formal validity of the marriage is governed by the laws of both England and Pakistan and the impact on that question of the decision of Lord Stewart in A v. K.

9. In making their submissions the parties may find it of assistance to consider the article by E. Crawford and J.M. Carruthers entitled “Dual locality events: marriage by telephone” in 2011 SLT 227.”

The Secretary of State’s Subsequent Position

11. In the light of those directions, the Secretary of State, in his further submission dated 2 September 2014 (page 134), now concedes that the purported marriage between the deceased and MB was not valid, that the deceased was consequently free to marry the claimant and that therefore she is entitled to bereavement benefit as claimed. The Secretary of State explained

“1. … As I think all parties are aware, [the delay] has been primarily because of the need for our Department’s lawyers to consult with other Departments.

2. This delay has, however, had an outcome which may be of assistance to the Appellant. To summarise the discussion, the legal advice I have now been given is that the proxy marriage ceremony conducted by telephone on an unknown date between 1956 and 1960 was not valid under English law. Further, even if it were the case that the marriage was valid under Pakistani law, a marriage conducted in two countries would have to be valid under the law of both countries to be valid under English law.

3. As this is now the Department’s position, if the UT Judge is wiling to endorse it the Secretary of State will pay the full amount of arrears of Bereavement Benefit due at the earliest opportunity, and will also make an ongoing award of the benefit”.

12. The claimant in her brief submissions of 5 and 10 September 2014 stated that she would be satisfied with that outcome and had no further observations to make.

13. I was satisfied that, in the light of the Secretary of State’s concession (which I considered to have been rightly made) and for the detailed reasons which I am setting out in this decision, the appeal tribunal erred in law and its decision should be set aside. I was in fact not due to sit again in the Upper Tribunal until mid-October and did not consider that the claimant should have to wait until then for the money to which she was entitled. I therefore produced a short formal decision on 26 September 2014 and stated that I would give a fully reasoned decision as to why the Secretary of State’s concession was rightly made, why the purported marriage ceremony in Pakistan between the deceased and MB on unknown date between 1956 and 1960 was not valid under English law and why, even if it were the case that the marriage was valid under the law of Pakistan, a marriage conducted in two countries would have to be valid under the law of both countries to be valid under English law.

14. Given that the Secretary of State now accepts that the previous legal advice which he had received as to the validity of transnational telephone marriage was incorrect and given that the point in question is one of some general importance, I did not consider that it would be appropriate merely to dispose of the case on the Secretary of State’s concession without a fully reasoned decision (see in an analogous context Barclays Bank Plc v. Nylon Capital LLP [2011] EWCA Civ 826 at paragraph 74 ff).

15. I therefore gave a formal ruling in September that, in the light of the Secretary of State’s concession and for the detailed reasons which I would set out thereafter, the appeal tribunal erred in law and its decision should be set aside. I remade the decision accordingly. The result was that the claimant was validly married to the deceased on 7 January 1986 and was entitled to bereavement benefit on his death. The Secretary of State must now pay the full amount of the arrears of bereavement benefit due to the claimant at the earliest opportunity and make an ongoing award of bereavement benefit in accordance with the claimant’s entitlement to that benefit.

The Decision Notice and the Statement of Reasons

16. In the decision notice the appeal tribunal determined that

“1. The appellant[‘s] representatives accept that the law as set out by the Secretary of State in the Tribunal papers is not disputed.

2. In the absence of any conf[i]rmation of the death of [MB], the submissions put forward by the Secretary of State are accepted and preferred to the submissions made by and[d] on behalf of the appellant. Accordingly, the submissions of the Secretary of State are adopted as reasons for this decision”.

17. So far as material the appeal tribunal found that

“4. On its own evaluation of all the available evidence the Tribunal made the following findings of fact:-

4.1 [The deceased] was married in Pakistan to [MB] on an unknown date between 6 February 1956 and 11 November 1960.

4.2 The marriage referred to in 4.1 above was contracted by telephone. Marriage by proxy or telephone can be recognised as a valid marriage in some countries including Pakistan and as [the deceased] was not a UK national and was not domiciled in the UK at the time of his marriage to [MB] that marriage is accepted as valid in the UK.

4.3 On 11 November 1960 [the deceased] obtained British Nationality. He declared himself at the time as married and stated his wife was [MB].

4.4 From 11 November 1960 to the date of his death [the deceased] was domiciled in the UK and therefore subject to UK laws/social security law.

4.5 Before his second marriage to [the claimant] [the deceased] divorced his first wife by way of a Talaq style divorce performed orally by telephone.

4.6 At the time of his divorce from [MB] [the deceased] had acquired his domicile of choice in the UK and had obtained UK nationality and was therefore subject to UK law. Talaq style divorces such as the one referred to in 4.5 above are not recognised as valid in the UK and therefore in the eyes of UK law/social security law [the deceased] remained married to [MB] notwithstanding the said Talaq style divorce.

4.7 It follows from all of the above that when [the deceased] married [the claimant] in Pakistan in 1986 (assuming [MB] was still alive at the time) that marriage was polygamous and therefore not valid in the UK. Accordingly [the claimant] as at the date of [the deceased’s] death was not his widow (or civil partner as defined by law).

4.8 Accordingly [the claimant] is not entitled to bereavement benefit because she does not satisfy the conditions of the entitlement.

5. The reasons for the findings of fact referred to in 4 above are as follows:-

5.1 The law as set out by the Secretary of State in the Response is correct and is not disputed by the Appellant as confirmed by the Appellant’s Representative at paragraph (i) of the said Representative’s Submission set out in the Response on pages 66 & 67.

5.2 [The deceased] was both at the time of his divorce from [MB] and at the time of his second marriage to [the claimant] a British National domiciled in the UK and thereby subject to UK law.

5.3 In the absence of any proof of [MB’s] death prior to [the deceased’s] marriage to [the claimant] in 1986 that marriage was polygamous and therefore invalid under UK law/social security law and [the claimant] cannot be accepted as the widow of [the deceased].

5.4 [The claimant] has had the opportunity to prove that [MB] died before [the claimant’s] marriage to [the deceased] but has been unable to do so. The Tribunal does not accept, as suggested by [the claimant’s] Representative, that it is not viable or reasonable to expect [the claimant] to prove [MB’s] death. Even in Pakistan there must be some record of the death of a person and/or evidence from someone who knew [MB] and of her death.”

Denmark

18. The claimant stated on the bereavement benefit application form that the deceased had lived in Denmark from 1983 to 2000 (page 11). In the domicile questions which she was asked in August 2012 she stated that he had lived in Denmark from 1982 to 2000, where he was a chef. He intended to live in the United Kingdom, but stayed in Denmark as long as his job was available. His usual residence in 1986 was in Denmark and in 1986 he regarded both Denmark and the United Kingdom as his home country (pages 51 to 52). However, neither side has submitted that Danish law is relevant to any of the questions which I have to determine and I shall therefore proceed on the footing that Danish law is not applicable to any of those questions.

The Submissions

19. For the reasons which appear hereafter, I am satisfied that the decision of the appeal tribunal was wrong in law and that the claimant was validly married to the deceased on 7 January 1986 and is therefore entitled to the bereavement benefit which she claims, as indeed the Secretary of State now accepts. It seems to me that the claimant’s original submissions were founded on a false premise, namely that the question of the validity of the deceased’s first marriage was a matter of the substantive validity of the marriage and was governed by the law of the deceased’s ante-nuptial domicile, whereas it is in fact a matter of the formal validity of the marriage which is determined by the lex loci celebrationis. However, although the Secretary of State in his original submission correctly identified the issue (at page 72), he was wrong (as he now accepts) to have submitted that the marriage of the deceased and MB took place in Pakistan and that therefore the formal validity of the marriage was governed by Pakistani law. The Secretary of State went on, however, to treat the first marriage as a proxy marriage (pages 101 to 102), which it was not.

20. The claimant was therefore wrong to have accepted that the Secretary of State’s exposition of the law was correct (page 66, paragraph 4(i)). Once she had accepted that his exposition was correct, she was forced to submit that, at the time of his marriage to MB, the deceased was domiciled in the UK and therefore did not have capacity to marry MB (page 65, paragraph 2(iv), but the question of the validity of the first marriage was one of its formal, not its substantive, validity and turned on the lex loci celebrationis rather than the law of the deceased’s ante-nuptial domicile. It was then submitted that the deceased had divorced MB at the time of the second marriage to the claimant (page 65, paragraph 2(iii)), but given that it had been argued that the deceased had by then acquired UK domicile and was resident in the UK (as the deceased had stated on his application for British nationality in 1960 at page 43) the purported talaq divorce cannot have been valid, a logical inconsistency pointed out by the Secretary of State. It was then argued that the marriage of the deceased to MB was void because of s.11(d) of the Matrimonial Causes Act 1973 (page 65, paragraph 2(x)), but the marriage of the deceased and MB was not polygamous on any footing and s.11(d) could not apply to that union. Finally, it was submitted that MB had died before the deceased married the claimant (page 65, paragraph 2(vi)), but for the reasons which appear below I consider that on the evidence it cannot be demonstrated that MB had died before 7 January 1986.

The First Marriage

21. There are three questions which must be resolved in order to determine the validity of the marriage between the deceased and MB:

(i) the date of the marriage

(ii) the means by which the marriage took place

(iii) the locus in which the marriage took place.

22. The deceased’s National Insurance record sheet RF1 showed that he had first arrived in the UK on 6 February 1956 and there was no mention of his marriage on the certificate. The box marked “Marriage” was left blank (page 45). By contrast, his application for registration as a UK citizen, which was dated 11 November 1960, described MB as his wife (pages 43 to 44). According to the claimant (page 48) the deceased and MB

“Got married Islamically by wireless telegram in 1959”.

23. It would therefore appear that the decased and MB had gone through a ceremony of marriage at some time between 6 February 1956 and 11 November 1960.

24. As to the means by which the ceremony was conducted, the Relationship Validation Unit’s advice on the validity of the relationship between the deceased and MB stated that (page 32)

“[The deceased] was married twice. His first marriage was to [MB] on an unknown date between 06 February 1956 and 11 November 1960 in Pakistan.

This marriage was contracted over the telephone on an unknown date between 06 February 1956 and 11 November 1960. At the time of the marriage [the deceased] was resident in the United Kingdom and [MB] was resident in Pakistan. The law of the UK does not allow for marriages to be contracted here by proxy or over the telephone. However, the laws of certain other countries (in this case Pakistan) can recognise such a form of marriage as valid, provided it is contracted in that country”.

25. Although the claimant suggested in the answers to the divorce questions (on page 48) that the first marriage had taken place “Islamically over wireless telegraph”, she had no personal knowledge of the circumstances of the ceremony (or indeed of the very existence of MB until after the death of the deceased). I am satisfied that the ceremony in fact took place over the telephone and not as she suggested by telegram or telegraph and I shall proceed on that basis. It therefore appears to be the case that the claimant was resident in the UK at the time of the first marriage. There is no mention of him having travelled to Pakistan for the ceremony - and indeed if he had travelled to Pakistan there would have been no need for a telephone ceremony. What appears to have occurred is that, when the wedding ceremony took place, he was in the UK and spoke on the telephone to MB who was in Pakistan.

26. It appears to be common ground that the formal validity of a marriage is to be determined exclusively according to the law of the place where it is celebrated, the lex loci celebrationis. But that raises the question of where was the marriage of the deceased and MB celebrated? In Pakistan, in England or in both England and Pakistan?

27. According to the Secretary of State’s original submission, based on the advice of the RVU (pages 32 to 33):

“The formal validity of a marriage is to be determined exclusively according to the law of the place where it is celebrated; the domicile of the parties is irrelevant. It therefore follows if a telephonic marriage can be said to have been celebrated in a country which recognises such marriages, we cannot deny that the marriage is valid for our purposes.

28. By contrast, however, Mr Royston submitted that

“15. There was no evidence at all, and no finding by the FTT, of the alleged marriage between D and B being a proxy marriage. Rather, it was simply said to have been contracted by telegram [48], or alternatively telephone [32].

16. While a proxy marriage could in principle lawfully take place in Pakistan, and would potentially be recognised in English law, different issues are raised in a marriage by telephone (or by analogy any other means of remote communications) where one person is present in the UK at the time. Annex B to Chapter [8] [not 18] of the Immigration Directorate Instructions produced by the Secretary of State for the Home Department suggests unequivocally that a telephone marriage is not valid:

“3.1. Proxy marriages

Where the law of the country requires a ceremony, and a ceremony takes place with the participation of a proxy in that country, then the country where the marriage is celebrated (not the country from which the proxy was appointed by the sponsor) is the country in which the ceremony occurred.

3.2. Telephone marriages

The formal validity of a telephone marriage is to be determined according to the laws of the countries in which both parties are physically present when the marriage takes place. Therefore, a telephone marriage celebrated whilst one of the parties is in the United Kingdom will not be valid as telephone marriages are not valid in this country. In cases where the UK-based sponsor was overseas when a telephone marriage took place and the laws of both countries recognise such marriages, we cannot deny that the marriage is valid. Enquiries about the marriage laws of other countries may be referred to Policy”.

20. In KC & Anor v. City of Westminster [2008] EWCA Civ 198 (19 March 2008), 42, the Court of Appeal suggested that there is in fact no authority on whether a telephone marriage can be valid where one person is present in the UK at the time. [The claimant] suggests that the IDI is correct and that such a marriage would be invalid”.

The Formal Validity of Telephone Marriage

29. In my judgment the formal validity of a telephone marriage is to be determined according to the laws of the countries in which both parties are physically present when the marriage takes place, with the result that a telephone marriage celebrated whilst one of the parties was in the England will not be valid since telephone marriages are not valid in this country. The consent of one of the spouses actually spoken in England is an integral part of the ceremony and indeed an essential prerequisite for the validity of the ceremony. It is spoken in England and heard in Pakistan. It would be curious if that consent, spoken in England, were to be regarded, as a matter of the formal validity of the ceremony, as actually being solely uttered in Pakistan when it was in fact uttered several thousand miles away. Furthermore, the advice of the RVU, if correct, would mean that a telephone marriage conducted between a man in England and a woman in Pakistan would be formally valid because

“in cultures which regard marriage as consisting of an offer by the man which is accepted by the wife, the marriage will probably take place where the wife is situated”,

but by remarkable contrast that a telephone marriage between a man in Pakistan and a woman in England would not be formally valid because telephone marriage is not valid in England (where, on this hypothesis, the offer was accepted or where the wife was resident or “situated”). It also begs the question of why the only culture which is applicable to the ceremony should be regarded as that where the wife is. Rather more naturally one would expect both the culture (or, perhaps more accurately in the present context, the law) of the place in which one spouse is physically present to be equally as applicable to the ceremony as that in which the other spouse is physically present. In addition, it seems to me that the giving and receiving of marriage vows is a mutual process and it is artificial to analyse the mutual giving and receiving of vows as an offer by one spouse and the acceptance of that offer by the other person as if it were an ordinary contract. Of course marriage is a contract, but it is a mutual contract of a particular kind and in that sense fundamentally different from a commercial contract. In that sense the rules relating to the place of the formation of commercial contracts do not provide an appropriate analogy for determining the place of the celebration of a marriage for the purposes of the conflict of laws. In principle the answer to the question of the formal validity of the marriage should be the same regardless of the geographical happenstance of where each of the parties happened to be on the occasion in question and should recognise the mutuality of the process involved between the two spouses.

The Authorities

30. Although there is no English authority which directly bears on the question of dual validity where the parties exchange their vows in different countries, there is persuasive authority in the form of Lord Collins of Mapesbury in Dicey, Morris and Collins: The Conflict of Laws, (14th ed., London, 2006), Vol.2, para.17–013:

“There is usually no difficulty in identifying the lex loci celebrationis because both parties are normally present at the ceremony. If the marriage is celebrated by proxy, as is possible under some foreign laws, the locus celebrationis is the country where the proxy takes part in the ceremony, and not the country where he or she was appointed. If no ceremony is required, but a marriage can be concluded by an exchange of promises (per verba de praesenti), difficulties may arise in identifying the lex loci celebrationis if the parties are in different countries when they exchange their promises. Probably the English courts would require to be satisfied that a marriage could be concluded in this manner by the laws of both countries …”.

31. The question was left open in KC v. City of Westminster (reported sub nom. Westminster City Council v. C [2009] Fam 11). In that case C was a young man of 24 with autism and severe impairment of his mental capacity. The local authority sought a declaration under the inherent jurisdiction of the High Court as to C's capacity to marry. Subsequently it was informed by his parents that C had taken part in a Muslim marriage ceremony to K by telephone while he was in England and K was in Bangladesh. He lacked the capacity to marry in English law. Protection issues were in the forefront of the case and the Court of Appeal granted a declaration that the marriage between C and K, although valid in accordance with the law of Bangladesh, was not recognised as a valid marriage in England because of C’s lack of capacity in English law. The judge at first instance (Roderic Wood J) found that the marriage was valid in Muslim law and in Bangladeshi civil law. He left undecided the identification of the lex loci celebrationis. He found that the father's consent given as the lawful marriage guardian of his incapacitated son was sufficient in Islamic law to constitute appropriate consent (paragraph 35). The father was apparently present at the ceremony in Bangladesh (paragraph 34). The judge recognised that it could be argued that the celebration of the marriage had occurred in both countries, but was inclined to proceed on the agreement of parties that it was more probable than not that the celebration of the marriage occurred in Bangladesh.

32. Thorpe LJ in the Court of Appeal regretted that the issue had not been fully dealt with at first instance and he continued:

33. Wall LJ was content to proceed on the footing that the marriage had taken place in Bangladesh and that it was valid by both Sharia law and Bangladeshi civil law, but noted the reservations of Thorpe LJ and would have welcomed the point being fully argued (see paragraph 50). It is, however, worthy of note that in paragraph 49 he said

“The evidence was that IC remained in England and participated in the ceremony over the telephone. Once again, a marriage celebrated in this fashion is wholly alien to the English concept of a marriage ceremony leading to a valid marriage.”

34. By contrast, there is the decision of Lord Stewart in the Outer House of the Court of Session in A v. K [2011] CSOH 101, 2011 SLT 873. The claim in that case was in the form of an undefended declarator of nullity of marriage (after a set of moribund proceedings had been issued in 2006) and so the applicable principles of law were never thrashed out in adversarial argument, but the facts were extraordinary, as Lord Stewart recited:

“[5] The pursuer is female. She was born in Edinburgh on 9 August 1984. She is a United Kingdom citizen of Pakistani ethnicity. She is currently employed as a hospital doctor.

[6] In about 2004 the pursuer met a man on the internet. She was then 20 years of age. That man is the now defender. He said he was 27 years of age. He had a postal address in Karachi, Pakistan. He told the pursuer that he was a car showroom manager in Dubai. The defender was very keen to marry the pursuer.

[7] The pursuer told her parents. At the time the pursuer lived with her parents at their house in Edinburgh. On 8 December [2004] the pursuer's mother travelled to Pakistan where she arranged to meet the defender. The pursuer's mother met the defender. She did not consider him a suitable husband for her daughter. The pursuer's mother returned from Pakistan on 19 January 2005.

[8] While in Pakistan the pursuer's mother reported back to the pursuer's father and to the pursuer in Scotland. She said that defender was not suitable. The pursuer's parents did not agree to the proposed marriage and the pursuer knew that.

[9] Notwithstanding that her father refused permission, the pursuer continued to communicate with the defender. She agreed to marry him. He asked the pursuer to send him copies of her birth certificate, passport and driving licence, which she did. She received copies of his papers in return.

[10] The pursuer and defender agreed to marry by telephone. The telephone marriage took place on 12 January 2005. During the proceedings the pursuer was in Scotland. She believes the defender was in Pakistan. The pursuer spoke on the telephone to someone who claimed to be a priest.

[11] The pursuer's mother was in Pakistan on the date of the marriage.

[12] The pursuer subsequently received what she describes as the marriage certificate with a translation. She signed the certificate. She was asked to take the certificate to the Pakistani consulate in Glasgow. She took the certificate to the consulate on 3 February 2005. The consulate stamped the certificate on the reverse. The pursuer sent the certificate away on the same day, presumably to the defender.

[13] The pursuer and defender have never met in person, before, during or after their marriage.

[14] It is to be inferred that the purpose of the exercise from the defender's point of view was to circumvent United Kingdom immigration controls. The pursuer's motivation is not explained beyond the fact that she claims to have been naive. She further states (supplementary affidavit No.12 of process): “I was going through a lot of pressure at the time and I was feeling bad about myself. I had just failed first year of university and I was getting a lot of hassle from my parents about it. It was a very difficult time for me. I was vulnerable at the time. I knew that I should not have done it, but at the time I was sincere.”

35. It was submitted for the pursuer (paragraph 20) that

“If a marriage happened in two places it was not a valid marriage … unless valid according to the law of both jurisdictions. This was not a valid marriage according to the law of Scotland. Accordingly it was not and had never been a valid marriage”.

36. In the course of the submission counsel drew attention to the guidance given by the UK Border Agency which, as will be noted, is not on all fours with the advice given in the IDI cited in paragraph 28 above:

“[28] Counsel drew my attention to the current United Kingdom Border Agency Entry Clearance Guidance for settlement in the United Kingdom applications, SET03 — Spouses. SET 3.17 Marriage by Telephone provides: “A telephone marriage is one where the exchange of vows or other marriage contract takes place over the telephone … A telephone marriage celebrated whilst one of the parties is in the UK is not valid. This is because telephone marriages are not valid in the UK … For cultures where marriage consists of an offer made by a man and accepted by a woman, the marriage is considered as taking place in the country where the woman is. If the woman is resident in the UK then a telephone marriage is not valid. If the woman is resident in a country where telephone marriages are valid then a telephone marriage may be valid.”

As explained in paragraph 29 above, I reject the analysis of offer and acceptance as being determinative of the lex loci celebrationis there set out and also the distinction drawn in the last two sentences of the extract.

37. One of the problems with that case was the quality of the evidence adduced and the taint of potential fraud, as Lord Stewart made clear in his judgment:

“[45] The pursuer has signed what is called the marriage certificate. Assuming all other details are in order, the certificate may well evidence a regular marriage with both parties present. Nothing on the face of the document, so far as the evidence goes, declares the marriage to have been by telephone. Nothing would alert the Border Agency to any entry clearance issues. Taking a severe view the pursuer, on her own account, has been complicit in falsifying the record to enable the defender to evade immigration controls.

…

[49] Was the pursuer's marriage celebrated exclusively in Pakistan? There is little hard information about the marriage. None of the witnesses in these proceedings speaks to being present. The pursuer states in her affidavit No.9 of process that she has produced “a certified copy of my marriage certificate and translation as relative hereto”. (The marriage “certificate” may be a marriage schedule rather than a certificate in the sense of a certified extract from the register of marriages.)

[50] The productions are photocopies. There is no self evident certification of the copy certificate No.6/1 of process. I would have expected an affidavit from an expert as to the nature of the document, its authenticity, the meaning of its contents and the legal effect. The photocopy does not show the consular stamp on the reverse referred to in the pursuer's affidavit.”

38. The question of the formal validity of the marriage was ultimately one of policy based on competing arguments, as the learned judge explained later in his judgment:

“[55] In cases of marriage said to be founded on consent alone, there is an argument for the dual validity rule and there is a competing argument for applying the rule of contract law. The contract rule is that a contract made by instantaneous communication is made in the place where the acceptance is received (Conflict of Laws, paras 11–186 and 17–013). (Whether, in the case of marriage, that place is the location of the man or of the woman may depend on whether the culture in question envisages the “offer” being made by the former or the latter.)”

39. Lord Stewart concluded on the facts that the marriage took place in Pakistan and that its formal validity was to be determined by the law of Pakistan. The marriage was therefore valid:

“[56] Where, in addition to consent, some third party endorsement, civil or religious, ceremonial or bureaucratic, is required to formalise the union, or where parties have agreed that the act is to be perfected in such a way, I would incline to the view that the place of the marriage is the place where it is solemnised; and that the formal regularity of the union is to be determined by the law of that place.”

[57] Returning to the present case, the pursuer has chosen — understandably perhaps, since she is implicated — not to aver that her marriage was and is a fraud as regards the matters of form bearing to be evidenced by the “certificate”. The only ground of action advanced to me is that formal validity is determined by the lex loci celebrationis; that since the marriage took place partly in Scotland its validity must be tested by the requirements of Scots law; and that, because the pursuer was not present at the marriage ceremony, the marriage does not satisfy the Scots law requirements for formal validity.

[58] I am not persuaded that the pursuer's marriage took place partly in Scotland. In my opinion the better view, on the hypothesis that I have been asked to accept about a ceremony in Pakistan, is that the marriage took place wholly in Pakistan. Even if the marriage did not take place exclusively in Pakistan, I should be reluctant to declare void a marriage which, on the submissions for the pursuer, is valid by the laws of Pakistan.

[59] No submission was made to me that the pursuer does not have a cause of action in Pakistan. In the circumstances it seems to me appropriate that the pursuer should seek her remedy elsewhere and I shall dismiss the action. If there be policy implications, these are matters to be addressed by the legislature.

40. In my judgment Lord Stewart was wrong and I do not propose to follow him. .For the reasons set out in paragraph 29, in my judgment the formal validity of a telephone marriage is to be determined according to the laws of the countries in which both parties are physically present when the marriage takes place, with the result that a telephone marriage celebrated whilst one of the parties was in the England will not be valid since telephone marriages are not valid in this country. In other words, to take up the point made by Lord Stewart in paragraph 55 of his judgment, the argument for the dual validity rule is more compelling that the argument for the rule in contract law that a contract made by instantaneous communication is made in the place where the acceptance is received. I find the criticism of the judgment in A v. K by E.B Crawford and J. M. Carruthers in “Dual locality events: marriage by telephone” in 2011 SLT 227 to be compelling.

41. Lord Stewart was reluctant to declare void a marriage which, on the submissions for the pursuer, was valid by the laws of Pakistan. I do not share that reluctance in this case in that:

(i) it was not a concern to the Court of Appeal in Westminster CC v. C where they were prepared to make a declaration that

“the marriage between IC and NK, valid according to the law of Bangladesh, is not recognised as a valid marriage in this jurisdiction”

(see paragraphs 32 and 103 of the judgment)

(ii) the opinion of the Privy Council delivered by Lord Dunedin in Berthiaume v. Dastous [1930] AC 79 at p.83 to the effect that

“If there is one question better settled than any other in international law, it is that as regards marriage - putting aside the question of capacity - locus regit actum. If a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the proceeding or ceremony which constituted marriage according to the law of the place would or would not constitute marriage in the country of the domicil of one or other of the spouses. If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere, although the ceremony or proceeding if conducted in the place of the parties' domicil would be considered a good marriage”

concerned a case in which there was only a single place of celebration (France) and his proposition likewise assumed a single place of celebration (as Lord Stewart noted in paragraph 46), but for the reasons I have set out above in this case there were two places of celebration and the formal validity of the ceremony must be judged by the laws of both jurisdictions, not one or the other

(iii) the marriage between the claimant and MB, assuming that it had been valid in the first place, was long since dead (hence the fact that he purported to divorce her by talaq from England).

42. In addition to the mutual consent of the parties, some form of third party endorsement (whether civil or religious, ceremonial or bureaucratic) may have been required to formalise the union (although in the instant case there is no evidence of that one way or the other). I do not, however, consider that that added element, should it exist in any given case, has the effect, for the purposes of determining the formal validity of the marriage, of rendering the place of the marriage solely the place where it is solemnised or certified without reference to the place where the consent of the parties was in fact uttered. In my judgment it is the whole of the ceremony which must be valid according to the laws of both of the jurisdictions in which all of the essential elements of the ceremony take place.

43. The actual decision in A v. K may, however, be justifiable on its facts. The marriage was obviously tainted by fraud, even if the pursuer herself could not aver that it was fraudulent for the purposes of her application, and the court may well have declined to lend its jurisdiction to such a tainted transaction. The pursuer had, on any footing, been extraordinarily naive and had only herself to blame for her apparent predicament and was left to her remedy elsewhere, whether in Scotland or Pakistan.

The Result in the Appeal

44. The result, therefore, is that the deceased was never validly married to MB. Given that he was never married to her, the question of the validity of any divorce from her does not arise. The deceased was free to marry the claimant in Pakistan on 7 January 1986 and did so. She is therefore entitled to bereavement benefit on his death. Strictly speaking it is not necessary to reach any conclusion on the other maters in issue, but I shall nevertheless do so for the sake of completeness.

The Talaq Divorce

45. At some time before he married the claimant, the deceased purported to divorce MB by way of a talaq divorce performed orally by telephone (again on page 48 the claimant, without any personal knowledge, suggests that the divorce was by “wireless telegraph”, which I again take to mean by telephone, but nothing turns on the method actually used).

46. The exact date of the purported divorce is not at all clear. In her letter at page 42 the claimant said that

“he did marry and did divorce her about 5 years before my marriage”,

which would suggest a date in or about 1981, but at pages 47 and 49 when asked the approximate date of the divorce she wrote

“was before 1965 - do not know the date”,

and

“was before 1965”,

whilst in her submissions at page 65 it is simply stated

“(v) In addition to this prior to his marriage to [the claimant] [the deceased] had divorced [MB]”

(and see similarly point (ix) on page 66, equally unspecific as to time).

47. Whether the exact date on which the talaq was pronounced was before 1965, in 1965 or in or about 1981, it was invalid for the purposes of English law. The deceased had become habitually resident in the UK by at latest 11 November 1960 when he stated as much in his application for British nationality. The correct position is as set out in the Home Office Visas and Immigration Guidance 2013 SET 13.5 on The Talaq Divorce cited by the Secretary of State in paragraph 16 of his submissions (pages 102 to 103):

“Under traditional Islamic law a bare talaq divorce is deemed to have taken place when the husband pronounces three times ‘I divorce thee’. This pronouncement dissolves the marriage instantly.

However, the Muslim Family Law Ordinance 1961 (MFLO) sets out formal requirements for the recognition of full talaq divorces in all parts of Bangladesh and Pakistan except Azad Kashmir:

· the husband must give notice in writing of the pronouncement of a talaq divorce to the Chairman of the Union Council of the Ward,

· the husband must also give a copy of this notice to his wife.

At the end of 90 days (or at the end of the wife’s pregnancy if she is pregnant at this time) the divorce will take effect. There is provision for attempts at conciliation between the two parties during this 90 day period.

Only a talaq under the MFLO is considered to have been obtained by means of proceedings as defined under UK Acts.

If a full talaq divorce takes place in Bangladesh or Pakistan it will be recognised in the UK if the procedures laid down under the Muslim Family Laws Ordinance 1961 were complied with, and:

· the husband or the wife is a Bangladeshi or Pakistani citizen;

· he or she is habitually resident in Bangladesh or Pakistan;

· he or she is domiciled in Bangladesh or Pakistan.

· The MFLO procedures have not been formally extended to Azad Kashmir. The only form of divorce which can be recognised there is the traditional bare form. If a bare talaq divorce takes place in Azad Kashmir, it will be recognised in the UK only if:

· the husband and wife are both domiciled in Azad Kashmir, and

· neither partner has been habitually resident in the UK in the year immediately preceding the pronouncement of the divorce.

If a bare talaq divorce takes place elsewhere in Pakistan or Bangladesh, it will not be recognised in the UK”.

48. SET 13.6 makes it clear that talaq divorce pronounced in the UK is not valid:

“If a husband pronounces talaq divorce in the UK alone, the divorce will not be recognised.

If a husband pronounces talaq divorce in the UK and then notifies his wife and the Union Council Chairman in Pakistan or Bangladesh, the divorce will not be recognised. The UK courts have held that an overseas divorce is capable of recognition in the UK only if the divorce has been instituted and obtained in the same country outside the UK”.

The Whereabouts of MB

49. On the footing that the deceased was married to MB, his purported divorce from her was never effective and he would have remained married to her unless she had subsequently died.

50. On the footing that the deceased was validly married to MB, but had not validly divorced her, the claimant argued that, on balance of probabilities, MB had died by the time of the second wedding ceremony, with the result that the first marriage had been determined by death, if not divorce, and that therefore she and the deceased were free to marry as at 7 January 1986.

51. However, the claimant was not able to produce any documentary evidence by way of a death certificate or any other documentation to prove that MB had in fact died at all, let alone by 7 January 1986.

52. In its statement of reasons the appeal tribunal determined the question adverse to her and said

53. I accept the Secretary of State’s submission that that conclusion amounted to an error of law. The Secretary of State submitted (pages 99 to 100) that

5. I submit that the tribunal misdirected itself in this respect. With regard to the maintenance of records in Pakistan, as, similarly, in Bangladesh, the recording of life events was for many years not regularised, and even until recently life events have not been reliably recorded. Azad Kashmir, which appears to have been the home of [the deceased, MB and the claimant], and where [MB] apparently died, does not even fall within the scope of the Muslim Family Laws Ordinance 1961.

6. This lack of official records in certain countries, and of the expectation that a wife should be able to produce evidence of the end of her spouse’s previous marriage was addressed by Commissioner (now Judge) Jacobs in paragraph 13 of his decision in CP/4062/2004 … Referring to the “Assessment of evidence involving claims by widows in Pakistan, Bangladesh, the Yemen, India and Jamaica”, he says

“This is an inevitable feature of cases involving countries in which there is no reliable system of registration of important life events like birth, marriage and death. It is a neutral factor in the assessment of the evidence. It hampers the genuine claimant in making her case, while providing an opportunity for deceit by the dishonest claimant. The decision-maker and the tribunal have to decide whether the claimant is genuine or dishonest. It is wrong to approach that task by taking the lack of contemporaneous evidence as a factor that is against the claimant. To do so would be to assume what has to be decided.”

7. Similarly, the Commissioner in CP/1812/2000 found on facts similar to those in the present case that:

“In summary, it appears that the Pensions Liaison Officer started with the assumption that the claimant’s marriage was not valid and then construed such evidence as there was in that light. The tribunal, in adopting his arguments, made the same error. In doing so, the tribunal took into account and misconstrued evidence which was not germane to the point at issue. For example, both the Pensions Liaison Officer and the tribunal cite as a reason for their views the alleged lack of knowledge of the claimant’s current wife regarding the death of the claimant’s former wife. Such a line of questioning may be considered relevant in the context of enquiries being made by an immigration officer but have no bearing on the validity of the second marriage itself. Indeed, no account was taken by either the Pensions Liaison Officer or the tribunal of MB’s reply that she was “not close” to the claimant’s first wife. Likewise no account was taken of her explanation for not having a valid identity card any earlier. These weaknesses are reflected in the second error of law.”

8. I submit that the tribunal was bound by these decisions. With regard to the proposition that the appellant should obtain evidence of [MB’s] death – which apparently occurred before 1986 – from a person who knew her, I note that in 2013 the population of Pakistan was estimated by the UK government as being some 184 million. Further, it appears that [the claimant] knew nothing of [MB] until after her death. [The claimant] lives in Sheffield. I submit that the tribunal should not have drawn a contrary inference from [the claimant’s] inability to provide this evidence.

9. I submit that in these circumstances it would be correct to apply the ruling of the House of Lords in paragraphs 61 to 63 of its judgment in Kerr [2004] UKHL 23, so that the Secretary of State would seek to obtain the information the appellant could not. However, on the basis of more than 12 years dealing with cases of this kind, I submit that the Secretary of State has no access to information which the claimant does not. In particular, it is unlikely given the fact that Azad Kashmir did not adopt the Muslim Family Laws Ordinance 1961, which gave powers to Union Councils for local record-keeping to national standards. Consequently, it appears that this appeal must be decided on the evidence already held”.

54. The question of MB’s death must therefore be determined, on balance of probabilities, on the evidence already available and without drawing any inference adverse to the claimant for not being able to adduce any such evidence. However, the evidence available is simply

(i) the statement on the appeal form (at page 4) that she had died in Mirpur, Azad Kashmir

“around 1980 to 1985”

(ii) the statement in the claimant’s submissions (at page 65) that

“(vi) [The claimant] has also been made aware by authorities in Pakistan that [MB] has also passed away a number of years prior to [the deceased]”.

55. But what must be determined on balance of probabilities is that MB had died before 7 January 1986. The statement that she had died “a number of years” prior to the deceased, who had himself not died until 2012, does not amount to such proof (as the Secretary of State rightly contends in paragraph 22 of his further submission on page 104) nor is it sufficient to give an unknown date over the period of half a decade without stating the source or sources of the information.

56. Equally, this is not a case where MB’s age was so advanced that one might be able to conclude on balance of probabilities that MB had died before 7 January 1986. On the contrary, as the Secretary of State submitted in paragraph 23 of his submissions (at page 104), MB’s date of birth is given as being approximately 1939 on the application form for citizenship (page 43). The average age for life expectancy in Azad Kashmir in 2006, according to the Federal Bureau of Statistics in Islamabad shows that that age is 64, whereas MB would only have been 47 in 1986.

57. I find on balance of probabilities that MB was still alive on 7 January 1986 and I am not satisfied on the evidence before me that I can conclude on balance of probabilities that she had died before that date.

58. If, therefore, the deceased had been validly married to MB (which I have concluded he was not), I would have concluded that he had not validly divorced her and that it could not be demonstrated on the balance of probabilities that she had died prior to 7 January 1986.

The Second Marriage

59. On the basis that the deceased was never married to MB, for the reasons set out above, the question of the validity of any divorce does not arise in any event and the deceased was free to marry the claimant in Pakistan on 7 January 1986.

60. Equally, I am satisfied that, on the basis that the deceased was never married to MB, the claimant was free to marry the deceased in Pakistan on 7 January 1986. On the marriage certificate the claimant is described as “Divorced” (page 22). In her undated letter on page 42, however, she says that when she was 10 she was married to another man, but that she discovered after 10 years of living with her parents in law that her husband was a eunuch and the marriage was annulled. As she had lived under the same roof as her parents in law for 10 years, and to avoid shame on anyone, the family gave it out that she was divorced and it was that word which the imam used at the wedding on 7 January 1986 at the prompting of the bride’s brother and which was recorded on the marriage certificate. I am satisfied that, whether by annulment or divorce, the claimant was free to marry the deceased on 7 January 1986. (The RVU in its advice of 16 October 2012 was prepared to accept that the claimant’s 1971 marriage was validly annulled in Pakistan and that as a void marriage it should be treated as if it had never existed (page 34).)

Conclusion

61. I am therefore satisfied that, for the reasons set out above, the appeal tribunal erred in law and its decision should be set aside. I remake the decision accordingly. The result is that the claimant was validly married to the deceased on 7 January 1986 and is entitled to bereavement benefit on his death. The Secretary of State must now pay the full amount of the arrears of bereavement benefit due to the claimant at the earliest opportunity and make an ongoing award of bereavement benefit in accordance with the claimant’s entitlement to that benefit.

Signed Mark West

Judge of the Upper Tribunal

Dated 24 October 2014