This article is written by Vanya Verma from O.P. Jindal Global University. This article covers the case analysis of NB v. MI in detail covering facts issues and judgements of the case focussing upon inherent jurisdiction highlighted in the case.
In the case of NB v. MI (2021) an application for a declaration of nonrecognition of Muslim marriage and a petition for nullity was brought before the High Court. In June 2013, the parties got married in Pakistan under Sharia law. Using two expert assessments, the applicant attempted to show that she lacked the mental ability to consent to marriage at the time. The court had to assess her capacity before deciding whether to issue a decree of non-recognition or to alternatively annul the marriage.
The applications were denied by the High Court because the petitioner had the capacity to agree at the relevant time, according to the facts of the case. As a result, the marriage was lawful under English law at the time of its inception. Even if he had come to a different view, Mr Justice Mostyn made it plain that the Court would not have made a declaration under its inherent jurisdiction because he was barred by statute.
Background of the case
- On June 1, 2013, NB (“W”) and MI (“H”) married in Pakistan under Sharia law. Neither party disputed the validity of the marriage in Pakistan, which was a huge event that included the exchange of vows in front of some 500 people.
- Apart from the two weeks following the wedding, the parties had spent very little time together. They had never lived together and were irreversibly separated.
- When W’s family put pressure on her to reconcile with H, high levels of tension were created. In April 2018, W travelled from England to see him, but the parties had agreed that the marriage was finished, according to W. H was now working in Dubai, and it was widely assumed that he intended to remarry, though W was unaware of any attempts to divorce her.
- W’s lawyers had attempted to serve H by mail and email, but he had not responded. Mostyn J was satisfied that H had been served but had chosen not to engage in the proceedings.
- W had been in a serious car accident eighteen years prior to the marriage when she was just six years old. She experienced a “catastrophic brain injury,” which had a significant influence on her mental health as well as her cognitive performance.
- W settled her damages claim for a large sum which was overseen by a deputy appointed by the Court of Protection as she lacked the capacity to manage her property and financial affairs.
- Throughout the deputyship, the deputy obtained capacity reports and evaluations in order to keep the court informed about W’s capacity. Dr. Kinch’s report from February 2014 (“the First Report”) and Dr. Michael Barnes’ report from 2016 were among them (“the Second Report”).
- W had grown more independent and was now competent to manage her property and finances, therefore the deputyship was terminated in 2019. Dr. Simon Prangnell’s examination (“the Third Report”) indicated that W had gained capacity in all areas of life examined, including the ability to marry and have sexual intercourse.
- Only the First Report, out of the three capability assessments, determined that W was capable of marrying in 2013.
- The applicant married respondent I in June 2013. Two experts, in assessments in 2012 and 2016, considered the applicant did not have the capacity to marry in 2013.
In September 2020, W issued an application for a declaration of non-recognition of the marriage, pursuant to the inherent jurisdiction of the High Court. W made a subsequent petition for nullity in November 2020.
Issues before the Court
The court had to decide whether W had the mental capacity to consent to her marriage to H and, if she didn’t, whether the marriage should be recognised by the court or annulled alternatively. Mostyn J asked:
- Whether W lacks the ability to consent to the marriage on June 1, 2013?
- Did the court have the right, under its inherent jurisdiction, to declare that the parties’ marriage, while legitimate under the Pakistani law, was not recognised as such in this jurisdiction, and if so, should that power be exercised?
- Should the time limit for the W’s nullity petition be extended under Section 13(4) of the Matrimonial Causes Act 1973?
Capacity to marry
Mostyn J extracted a series of useful ideas from the broad case law on the capacity to marry, including:
- A marriage contract is “a very simple one” that “does not require a high degree of ability to comprehend.” This affirmed the “universal norm” established in Durham v Durham (1885), leading him to conclude that the required capacity to marry was of a “low level.”
- That marriage is “status-specific” rather than “spouse-specific”.
- The ability to marry is not the same as the ability to consent to sexual intercourse. Mostyn J emphasised that “capacity is always issue-specific,” and that while the capacity to marry and the capacity to engage in sexual relations are “legally distinct” and do not “rise and fall simultaneously,” they “usually function at the same level.”
- That a person getting married has no obligation to “cohabit, engage in sexual relations, or procreate with his or her spouse.” As a result, none of them is required for a legal marriage.
- The spouses are given a certain status as a result of their marriage. It establishes “a union of mutual and reciprocal expectations,” the most important of which is “enjoying each other’s company, comfort, and support.” Furthermore, “the general purpose of the institution of marriage is man and woman’s consolation and contentment”. Mostyn J preferred allusions to married couples’ expectations over the language of “obligations and rights,” which he regarded as including “concepts likely to be alien to a wedding couple,” such as justiciability and enforceability.
- While there may be financial implications to a marriage’s dissolution, spouses are not required to be aware of or understand those consequences. Mostyn J emphasised that a sharing economy was not the essence of a marriage contract and that marital consent did not require knowledge of prospective financial claims in the event of divorce. To use this as a criterion for marrying capacity “is to import a level of sophistication at odds with the contract’s simplicity.”
- “The wisdom of a marriage is irrelevant”.
- As a result, the “irreducible mental requirement” is that a “potential spouse must have the capacity to understand, in broad terms, that marriage confers on the couple the status of a recognised union,” which leads to an expectation that the couple will “share each other’s society, comfort, and assistance.”
- In light of this test, Mostyn J examined the capacity assessments one by one, concluding that the Second and Third Reports had “applied a higher standard for capacity to marry than that required by law” and, as a result, had incorrectly decided that W lacked the capacity to marry in 2013. Despite the importance of these findings and W’s testimony, W’s lack of awareness of the differences between Islamic and English marriage, the financial implications of marriage, or H’s planned living arrangements had no bearing on her ability to marry. While “they may say a lot about her wisdom in marrying,” it was not the issue Mostyn J had to resolve.
- In 2013, Mostyn J agreed with the First Report’s conclusion that W had the potential to engage in sexual intercourse and marry. He concluded that “she was fully aware of the simple nature of the compact and that by an exchange of vows a partnership was made with mutual expectations of comfort, society, and support,” based on W’s testimony.
- As a result, both the application and the petition were dismissed. While Mostyn J recognised that this was adequate to resolve both claims, he went on to address the remaining issues in the event that a higher court disagreed with his fundamental conclusion.
Declaration under the inherent jurisdiction
- Mostyn J examined Section 58(5)(a) of the Family Law Act 1986, which provides that “No declaration may be made by any Court, whether under this part or otherwise- that a marriage was void at the time of its origin.”
- Mostyn J ruled that “whatever you interpret these terms, the meaning is clear”; Section 58(5)(a) “explicitly precludes a declaration of the initial validity of the marriage being made by any means”. Furthermore, Mostyn J stated that the Law Commission had stated in a 1984 report that if the court lacked jurisdiction to hear a nullity petition, it could not use a declaration of non-recognition to ‘fill the gap.’
- However, Mostyn J observed that “judicial fidelity to these statutory mandates and prohibitions has been mixed.” While Mostyn J acknowledged the “temptation of a judge” to “find a loophole of some kind” where nullity proceedings are impossible, he pointed out that such a scenario had been explicitly considered by the Law Commission, and thus implicitly by Parliament, who decided that the “statutory prohibition should be unyielding even in those circumstances.” Parliament had the option of inserting an exemption based on public policy, but it chose not to do so.
Extension of time under Section 13(4) the Matrimonial Causes Act, 1973
W made a “disciplined effort” to persuade Mostyn J to interpret the medical evidence in the case, which was aimed at capacity, as indicating that she had a mental disability or mental disorder at the time of the marriage. Despite these attempts, none of the medical evidence in the case addressed the question of whether W suffered from a mental disorder or mental disability within the meaning of the Mental Health Act 1983 between June 2013 and June 2016.
As a result, the requisite for a grant of leave to apply for nullity outside of the three-year time limit set out in Section 13(4) of the Matrimonial Causes Act 1973 was not met.
The decision of the Court
The Court found that two of the experts in the case used a higher standard of capacity to marry than that required by law. In June 2013, the court heard evidence from the applicant and determined that she had the legal competence to marry. Even though she was unaware of the financial ramifications, she understood and was “completely aware” of the contract’s simple nature. Although the latter may represent her lack of insight at the time of her marriage, it had no bearing on her ability to marry. The application for a declaration of non-recognition and the petition for nullity were both dismissed on this basis.
What can be drawn from the case
- The marriage contract is a straightforward document that does not necessitate a high level of intelligence to comprehend.
- Marriage is status-specific, not spouse-specific.
- While the ability to choose to participate in sexual relations and the ability to marry is typically on par, they do not stand or fall together; one is not dependent on the other.
- A lawful marriage does not require sexual interaction.
- The institution of marriage does not end with the procreation of children.
- Marriage confers a certain status on the spouses. It brings together a set of mutual and reciprocal expectations, the most important of which is to enjoy each other’s company, comfort, and aid. The general goal of marriage is to provide comfort and satisfaction to both man and wife.
- A marriage, as well as its breakup, may have financial ramifications. However, it is not necessary for the spouses to be aware of, let alone understand, the effects of their marriage contract.
- Although most married couples live together and love one another, this is not the essence of the marriage contract.
- A marriage’s wisdom is immaterial.
Judgement of the case
W’s application for a declaration and her petition for nullity were both dismissed by Mostyn J for the reasons mentioned. He said that Section 16 of the Matrimonial Causes Act 1973 has the effect of treating the marriage formed in 2013 as legitimately continuing even if he had been erroneous about the question of capacity at the time of the marriage in 2013. The most appropriate remedy, according to Mostyn J, would be for W to seek divorce.
Mostyn J, on the other hand, reassured W that the chances of H succeeding in an ancillary relief claim were “vanishingly small.”
W’s award as a result of the 1995 accident had been assessed with her requirements in mind, as well as compensation for her pain and suffering. Furthermore, the parties’ marriage had never been a marriage in the first place. It was because of this that Mostyn J found it “impossible to conceive of any circumstance” where H could mount a plausible claim against W.
Practical implications of this case
Mostyn J conducted a thorough review into the capacity to marry. He agreed with the Durham dicta (Durham v Durham (1885) 10 PD 80) that the marriage contract is a “very simple one” and the case law that sets the standard for capacity to marry at ‘low-level’. He distanced himself from Mr Justice Munby’s (as he was at the time) language of ‘obligations and rights,’ instead of referring to expectations between a married couple. He emphasised that capacity is issue-specific, noting that the capacity to marry differs from the capacity to consent to sexual relations. Ultimately, the test of capacity to marry is not difficult, even if an applicant is unaware of the financial implications of marriage (as the experts, in this case, claimed the applicant was not), they may still be able to consent to marriage.
Modern marriage does not imply a responsibility to cohabit (which the applicant had not done in this case), engage in sexual relations, or conceive. There is also a thorough examination of the law relating to declarations in family issues, as well as the Law Commission’s recommendations in its 22 February 1984 report, which resulted in the Family Law Act 1986. (FLA 1986). The ‘statutory prohibition’ found in FLA 1986, according to Mostyn J, prevents a court from declaring a marriage’s initial invalidity. Furthermore, Mostyn J expresses the Law Commission’s view that if a court lacks jurisdiction to hear a nullity petition, it cannot use a declaration of non-recognition to “fill the vacuum.” In NB v MI, the Court determined that the petitioner had the capacity to consent and that the marriage in June 2013 was legitimate under English law at the time of its formation. Even if the Court decided she lacked capacity and the marriage was voidable because the applicant did not consent due to insanity, Mostyn J was clear that he would have refused to grant a declaration that the marriage should not be recognised because it would have been a “blatant bypassing and flouting” of the statutory prohibition.
As a result, the irreducible mental condition is that a prospective spouse must be able to comprehend, in general words, that marriage confers on the pair the status of a recognised union, resulting in an expectation of sharing each other’s society, comfort, and help.
It is not necessary for a person getting married to understand the financial implications of the union in-depth, let alone the law of financial remedies. A person getting married is also not obligated to cohabit, engage in sexual relations, or conceive with his or her spouse.
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