14 February 2017
Appeal against a decision in which a Syrian marriage was found to be valid
Facts:
- In 1999, a religious marriage took place in Syria. The husband was not present, and his place was taken by his brother, as proxy. This was sufficient for religious purposes and was intended by the parties as a binding and valid ceremony under Syrian law.
- The husband wrote to his English MP to try to obtain entry clearance to England, confirming that they were married under Islamic and Syrian law. This was successful and the parties lived as spouses until their divorce proceedings. There was one child of the marriage, born in 2000.
- In Syria, there were two conflicting records of the parties’ civil status. One recorded the parties as married; the other recorded the husband as single.
- Following the husband’s petition for divorce (and the wife’s cross-petition), HHJ Tolson QC found the Syrian marriage to be valid.
- The husband appealed the decision of HHJ Tolson QC.
Held:
- The husband’s appeal was dismissed unanimously by the Court of Appeal.
- The validity of a marriage is determined by the law of the place where the marriage was celebrated (the lex loci celebrationis). However, domestic law applies in determining issues of fact. Therefore, HHJ Tolson QC had to decide whether the presumption of marriage applied on the evidence.
- A presumption of marriage by reason of cohabitation and reputation brings with it a presumption that the proper formalities of the marriage ceremony were observed, unless there is “clear”, “positive”, or “compelling” evidence to the contrary.
- A long-standing marriage will not be struck down lightly due to the lack of compliance with formalities in years gone by.
- The evidential burden therefore lay with the husband who had, it was determined, failed to discharge it with positive evidence.
