Family Law: Rights of Cohabitees

Case: NA v MSK [2018] EWFC 54

Full case here: http://www.bailii.org/ew/cases/EWFC/HCJ/2018/54.html

Summary:
A Muslim woman seeks to divorce her partner of 18 years (4 children) in the UK claiming a presumption of marriage on cohabitation and reputation. Her partner filed for non-marriage as they have never been married under English law, this is so that she will not gain any financial benefit from the divorce.
They had a wedding ceremony (a Nikah) in Dubai, therefore, the woman claims the marriage was a void marriage within section 11(a)(iii) of the Matrimonial Causes Act 1973.

Issue:
Whether a Nikah marriage ceremony creates an invalid or void marriage in English law.

Judgement (Mr Justice Williams): It is therefore a void marriage and the wife is entitled to a decree of nullity.

1.     The term non-marriage should thus be reserved to situations which properly warrant the description such as actors acting a scene or parties playing at getting married.

2.    The Attorney General accepts that Article 3 of the United Nations Convention of the Rights of the Child informs Article 8 ECHR but does not accept that the children’s best interests are engaged at this stage. In any event, even the children’s best interests are addressed by the remedy that is available to the wife under Schedule 1 of the Children Act. Section 11 of the Matrimonial Causes Act 1973 applies to adults without children or without minor children as well as those with children and its interpretation cannot be dictated by those cases where minor children are involved.

3.    If this situation falls within Article 8 because it is a marriage according to conscience there is no logical reason to exclude all forms of marriage however unorthodox they may be for instance as referred to in an article by Mr Le Grice QC ceremonies such as hand fasting or broom jumping.

4.    The article ‘The Presumptions In Favour of Marriage’ by Prof Probert Cambridge Law Journal 77 (2) provides a fascinating analysis of the presumptions.

Two forms of the presumption exist. Rayden and Jackson on Relationship Breakdown, Finances and Children, 19th edition, identifies them as follows.

a. Presumption from cohabitation and reputation:
Where there is no positive evidence of any marriage having taken place, where parties have cohabited for such a length of time and in such circumstances so as to have acquired the reputation of being spouses, a lawful marriage may be presumed to exist. This is particularly so when the relevant facts have taken place outside the jurisdiction.

b. Presumption from ceremony followed by cohabitation:
Where the court has evidence that the parties have undertaken a ceremony of marriage and have subsequently cohabited then, unless there is cogent evidence to the contrary, the existence or happening of all other things necessary for the validity of the marriage will be presumed. This extends to making presumptions about the granting of a special licence.

Comment:
Marriage creates a legal status and legal consequences and both partners readily agreed to bound by it.

Cohabitants do not enjoy the same rights as married couples do.
This infers a subtle shift towards marriage and most people are weary of getting married as the rate of divorce gets higher each year.

The court’s refusal to depart from the traditional route of not granting certain rights to unmarried couples remains baffling as most people are more comfortable living together than getting married.

Besides, the Law Commission report of 2007 recommends that the current law should be amended to recognise the rights of cohabitants but the parliamentary government in 2011 refused to implement the recommendation.
[Law Commission is a governmental department in the UK that recommends reform on law that have become outdated and does not meet the current needs of the society]

It is interesting to see that recent cases on cohabitants are beginning to depart from traditional precedents to resolve cases on their factual merits; which is what justice is all about.

Currently, cohabitants are advised to register their relationships by drawing up legal agreement/contract outlining the rights and obligations of each partner. When buying expensive things like houses or cars, each partner should make sure their names and contributions are documented. This is to ensure financial consequences should the relationship break down.

Leave a Reply

Your email address will not be published. Required fields are marked *