No declaration of invalidity

Westminster City Council v IC and others CA TLR 3 April; LSG 3 April

IC was born in 1981 and suffered from severe impairment of intellectual functioning and autism. He needed considerable support in all areas of his life and could not be left alone without risk. He received home care five mornings a week, before he attended a day centre. The local authority had been involved in supporting and protecting him since he was four years old. The role of marriage in the life of one so handicapped was inconceivable in our society. Indeed, he lacked the fundamental capacity to marry under English law. The family at the heart of the appeal were British nationals domiciled and habitually resident in this jurisdiction. However, the family was of Bangladeshi origin and only IC was born in this country. IC’s intellectual handicap did not preclude marriage in Bangladesh. The local authority raised the issue of marriage with IC’s parents in 2006. There was no agreement that IC could not and should not ever marry and therefore the local authority applied under the inherent jurisdiction of the High Court for a declaration as to IC’s capacity to marriage. IC’s parents responded by saying that IC had in fact married in a Muslim ceremony over the telephone, he being in England and his bride being in Bangladesh. The parents appealed against the judge’s declaration that the marriage was invalid under English law following his refusal to recognise the marriage on the grounds of public policy and his rejection of the parents’ submissions that pursuant to s12(c) of the Matrimonial Causes Act 1973, the marriage was merely voidable rather than void and the Court therefore had no power to deny it recognition.