[2024] UKUT 00363 (IAC)

Islamic law is a system whose details require proof by evidence like any foreign legal rules, but we can take judicial knowledge (in England, judicial notice) of basic principles and notorious facts. An Islamic marriage is essentially simply a contract between the parties. The Hanafi school requires witnesses, but even that requirement is regarded as unnecessary by Shiites. Where there is a ceremony, it often takes place at a mosque and is confirmed by a minister, or Nikah Khan. An Islamic marriage contracted in any part of the United Kingdom does not as such comply with the Marriage Acts (with their requirements for notice, form, presence of a relevant church minister or Registrar, and licenced place of celebration). It is not formally valid and is therefore not entitled to recognition as a marriage by the law of any part of the United Kingdom.

A marriage contracted outside the United Kingdom will be recognised as formally valid in the United Kingdom if it was in a form required or permitted by the law of the country where it took place. So far as Scotland is concerned that rule now has statutory force in s 38(1) of the Family Law (Scotland) Act 2006. In England and Wales the same rule is still derived only from the common law: a recent example of its application is MM v NA [2020] EWHC 93 (Fam).

The law of Pakistan appears to allow marriages by proxy, that is to say marriages where at the ceremony one or both of the principals is represented by another person. It is also said that Pakistan allows marriages by telephone, at least where one party is absent but communicates by telephone with the place in Pakistan where the marriage is being celebrated: see the Opinion of Lord Stewart in MRA v NRK [2011] CSOH at [16]-[18]. There is in this case no evidence of foreign law in relation to whether Pakistan recognises a marriage where neither party is present in person, as is apparently the case in Ghana (see McCabe v McCabe [1994] 1 FLR 410) or where neither party is present in person but both are in telephonic contact with a place in Pakistan where the marriage is said to be being celebrated. The absence of evidence is potentially important, because A has the burden of proving that in 2016 there was a marriage entitled to recognition in Scots and UK law.

Section 20 of the Marriage (Scotland) Act 1977 has no equivalent in England and Wales. Subsection (1) provides as follows:

“Where two persons have gone through a marriage ceremony with each other outside the United Kingdom, whether before or after the commencement of this Act, but they are not, or are unable to prove that they are, validly married to each other in Scots law, an authorised registrar, on an application made to him by those persons, may, subject to the approval of the Registrar General and to subsection (2) below, solemnise their marriage as if they had not already gone through a marriage ceremony with each other.”

Subsection (2) includes consequential modifications of the general law of marriage and requires the parties to submit a statutory declaration that they have previously “gone through a marriage ceremony with each other”, giving the date, place and circumstances.

No judicial authority on this section was cited to us. Academic discussion points out that if the previous ceremony was ineffective the provision is unnecessary because the parties would be free to marry without it. If the previous ceremony was effective there is nothing in s 20 or elsewhere suggesting that the ceremony under s 20 revokes or replaces it. (See Anton’s Private International Law, 3^rd ed, 15.08; Clive’s The Law of Husband and Wife in Scotland 4^th ed, 04.028).

We agree. The section specifically deals with cases where there is or could be a doubt about the evidence. As it appears to us, the effect of the ceremony under s 20 is as follows. (1) If the parties’ marriage was not previously valid or recognised in Scotland, then, following the ceremony, they are validly married for the purposes of Scots law from the date of the ceremony. (2) If the parties’ marriage was previously valid and entitled to recognition in Scots law, their status as married persons is unchanged by the ceremony, but the documentation arising from the ceremony enables them to establish that status from a date no later than that of the s 20 ceremony. It is in the nature of the circumstances covered by s 20 that there may still be doubt about whether (1) or (2) applies; and nothing in the s 20 process assists in resolving that doubt.

The presumption in favour of marriage is found in both English and Scots law. As set out in Crawford and Carruthers’ International Private Law: A Scots Perspective (4^th ed) at 11-26, based on English judicial authority:

“The common law presumption is that if a marriage has been celebrated, registered and a formal certificate produced, it will be formally valid, and the onus of proving otherwise rests upon any person who so avers.”