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Family Law

The leading authority on all aspects of family law

06 FEB 2013

JURISDICTION: XCC v AA and Others [2012] EWHC 2183 (COP)

(Court of Protection, Parker J, 26 July 2012)

The woman, a British citizen, had severe learning difficulties, little language and needed assistance with almost every aspect of daily living. Following an arranged marriage in Bangladesh to her cousin a Forced Marriage Protection Order was granted due to significant concerns as to the woman's welfare. In the Court of Protection a number of interim declarations were made including that the woman was not motivated by a genuine desire to be married as opposed to having the benefit of a spousal visa.

When the issue of the marriage returned to the court the judge requested the Attorney General to instruct an advocate to the court. The opinion of the advocate was that the marriage should not be recognised by the courts of England and Wales. The court heard evidence from an expert in Islamic law and all parties, save the ‘husband' were in agreement that a non-recognition declaration should be made.

The court, invoking the inherent jurisdiction, made a declaration that the marriage celebrated in Bangladesh was not recognised as a valid marriage in England and Wales. It was in the woman's best interests to take steps to annul to marriage and to appoint the Official Solicitor, as her litigation friend, for that purpose.

There was no provision under the Mental Capacity Act 2005 to make a non-recognition declaration in respect of a marriage. The court could, however, invoke the inherent jurisdiction in order to fill the gap. The court was entitled to do so, not by virtue of a welfare or best interests decision but by the fact that the woman had not consented to marriage. 

 

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