Case No. UKUT-00180-(IAC)

[2008] UKAIT 00094). We have assessed the expert evidence on its own merits. Having said that, the respondent’s inaction on this issue means that there is no expert evidence from her to contradict or qualify that provided by Dr Curry-Sumner. 32. The only evidence produced by the respondent is of very little probative value. The materials are printouts from websites, albeit official Dutch government ones. They do not even allude to substantive legislative provisions of relevant Dutch law regarding the issue in this appeal. Indeed, as we shall discuss later, the information contained in the printouts is irrelevant to the question of whether the marriage is valid under Dutch law. In our view, these materials are of even less assistance than the legal materials considered and rejected by the Upper Tribunal in Kareem and TA . 33. In light of everything said above, we attach significant weight to the expert evidence of Dr Curry-Sumner. In this context, we address the relevant parts of his report. 34. Dr Curry-Sumner refers to the relevant aspects of the Dutch Civil Code by reference to its constituent Books (of which there are ten in total). The Book relating to Private International Law (and thus the issue of overseas marriages with which we are concerned) is Book 10. The key Articles of Book 10 are 31 to 34. For the avoidance of any confusion, we note that in Kareem the Upper Tribunal referred to the relevant provisions using the format of the Book number immediately followed by the particular article, whereas Dr Curry-Sumner cites them in reverse order. This makes no difference to the substance of his conclusions. 35. The first conclusion provided by Dr Curry-Sumner is that the law applicable to the issue of whether the claimant’s marriage is valid under Dutch law is contained in Articles 27-34 of Book 10 of the Dutch Civil Code, and not in the Hague Marriage Convention 1978 (paragraphs 2.1 to 2.2 of the report). The reason provided for this conclusion is that although under the Dutch Constitution international instruments will take precedence over domestic private law, Articles 5, 6 and 7 (with reference to Article 8) of the Convention exclude proxy marriages from its scope. We rely on this conclusion and find as a fact that this is the case. 36. The expert confirms that by virtue of Article 34, the provisions of the Dutch Civil Code only apply to marriages contracted after 1 January 1990. We find this to be so. 37. Dr Curry-Sumner then sets out his opinion on the core provision of Article 31(1) of Book 10. It is as well to quote the relevant passages contained in paragraph 2.4 of his report: “The main rule is that a marriage concluded outside of the Netherlands will be regarded as valid and thus recognised as a valid marriage if it is concluded in accordance with the law of the State where the marriage took place…Automatic recognition only occurs, however, on the premise of the satisfaction of two cumulative conditions, namely firstly that the marriage is valid according to the law of the place where the marriage took place, and secondly that no exception ground is at stake…Contrary to the requirements for entering into a marriage in the Netherlands before the civil registrar, foreign informal marriages and other forms of marriages not permitted in the Netherlands may be recognised if conducted properly abroad. This means that informal or religious marriages that are concluded validly abroad will be recognised as such in the Netherlands.” 38. In view of the significant weight we attach to his report in general, for reasons elucidated previously, we find as a fact that the operation of Article 31(1) of Book 10 is as stated by Dr Curry-Sumner in the passage quoted above. 39. Paragraph 2.5 of the report is concerned with the validity of the marriage under Ghanaian law, that being a prerequisite for recognition under Dutch law. Whilst Dr Curry-Sumner deals with the matter in some detail, this issue has already been decided in the claimant’s favour by virtue of the preserved findings of First-tier Tribunal Judge Dineen, or, in the alternative, by our own conclusion on the evidence from the Ghanaian authorities. However, it is important to reiterate that the question of whether a marriage is valid according to Ghanaian law (or indeed the law of any other country) is one of fact for the Tribunal. This particular fact-finding exercise must take place in advance of a consideration of whether the marriage is valid under Dutch law. If a favourable finding is made in relation to validity according to the law of the country in which the marriage took place, it will in the normal course of events follow that the marriage is recognised as valid according to Dutch law, given what we say about the absence of public policy objections, below. 40. In terms of how a claimant in any given case may be able to prove the validity of their marriage under Ghanaian law, there are various means, as discussed in Kareem , none of which are discounted by the expert evidence before us. These are not without their evidential difficulties, but in the context of the present appeal none of this concerns us, given the favourable findings already made on the issue. 41. Having viewed the evidence of Dr Curry-Sumner as a whole we find that under Article 31(4) of Book 10 of the Dutch Civil Code, there is a statutory presumption to the effect that where a marriage certificate issued by a competent authority is produced, the marriage shall be deemed to be valid until the contrary is established – see paragraph 2.5.2 of the report. According to an academic source cited in the same paragraph, the term “competent authority” should be interpreted as meaning that the authority in question is competent in the country in which the marriage took place. We emphasise that it is for the person adducing a marriage certificate in any given case to prove both its reliability and issuance by a competent authority. 42. Aside from the question of validity of the marriage under Ghanaian law, the second matter that must be shown for recognition of the marriage under Dutch law is that it is not regarded as being contrary to public policy: in other words that no exception ground exists. This issue is dealt with in the section of the report entitled, “Non-recognition and public policy”. Dr Curry-Sumner explains that Article 32 of Book 10 provides for the withholding of recognition of foreign marriages on grounds of public policy. Importantly, and relying upon explanatory notes accompanying the introduction of the legislation in question, Dr Curry-Sumner is of the opinion that it would be “quite hypocritical” of the Dutch authorities to deny recognition of proxy marriages when the notes themselves acknowledge the possibility of such unions under Dutch law. He concludes by stating: “Accordingly, it would appear that the recognition of proxy marriages are not to be regarded as contrary to Dutch public policy.” 43. As with other aspects of his report, we place significant weight upon this conclusion, and in the absence of any evidence from the respondent to found a contrary position, we rely on it and find as a fact that on the evidence before us there is no public policy objection in Dutch law to the recognition of proxy marriages conducted abroad. 44. A matter which consumed a considerable amount of time in this appeal is whether the claimant’s marriage was registered with the Dutch authorities, and whether in turn this made a difference to its validity under Dutch law. Whilst in essence Ms Ofei-Kwatia’s position was that it had no bearing on the core question of validity, Mr Melvin appeared to us to be suggesting that it did. Indeed, the materials he provided went solely to the issue of registration. 45. At the hearing we indicated that this issue might have been something of a distraction from the core question of validity. The evidence provided by Mr Melvin said nothing at all about registration being a necessary requirement for the purposes of validity. At paragraph 2.4 of his report, Dr Curry-Sumner states that, “Registration of the marriage in the registers of the Personal Records Database is not a constitutive requirement for the validity of the marriage.” The database referred to is the very one mentioned in the website materials relied on by Mr Melvin. In light of this we have no hesitation in finding that the issue of registration is a purely procedural matter relating to the requirements of residence in the Netherlands following an overseas marriage. It has no bearing on the validity of the marriage itself. 46. The final matter addressed by Dr Curry-Sumner in his report is that of Mr Awuah’s divorce. It is said that under Dutch law, the recognition of divorces obtained outside of the European Union and in countries which have not ratified either the Hague Divorce Convention or the Luxembourg Divorce Convention is governed by Article 57 of Book 10: recognition occurs if the dissolution is obtained, as Dr Curry-Sumner puts it, “through a proper divorce procedure.” We find that this is indeed the correct legal position. In the context of the expert’s evidence, it is clear to us that the “proper divorce procedure” must mean one which is in accordance with the laws of the country in which it takes place. 47. In summary, drawing together what is said in Dr Curry-Sumner’s report, we find that the following propositions as to Dutch law are made out: a) A proxy marriage contracted outside of the Netherlands will in the normal course of events be recognised as valid according to Dutch law provided that it was so contracted in accordance with the laws of the country in which it took place, and that the parties were free to marry. b) Proxy marriages are not regarded as being contrary to Dutch public policy. c) It is for an applicant to prove that their proxy marriage was in accordance with the laws of the country in which it took place, and that both parties were free to marry. d) The burden of proof may be discharged by production of a marriage certificate issued by a competent authority of the country in which the marriage took place, and reliance upon the statutory presumption of validity consequent to such production. The reliability of marriage certificates and issuance by a competent authority are matters for an applicant to prove e) The means of proving that a proxy marriage was contracted according to the laws of the country in which it took place is not limited to the production of a marriage certificate, (as is recognised in Kareem ). f) In cases where a divorce has taken place prior to the proxy marriage and there is an issue as to whether the parties were free to marry, it is for the claimant to show that the dissolution of the previous marriage was in accordance with the laws of the country in which it occurred 48. In respect of the last of these propositions, as with the issue of the validity of the marriage in Ghana, the issue of the divorce has already been resolved in the claimant’s favour by the First-tier Tribunal in a finding preserved by Upper Tribunal Judge Rintoul. 49. The ultimate conclusion of Dr Curry-Sumner is unambiguous: on the basis of the information provided to him, the marriage between the claimant and Mr Awuah is valid according to Dutch law. Having regard once again to the weight attached to the report as a whole, the preserved findings of fact, the location of the burden of proof and its applicable standard, we are more than satisfied that when the six propositions set out above are applied to this case, the claimant’s proxy marriage is recognised as valid according to Dutch law.