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Rationality and Cultural Pluralism in the Non-recognition of Foreign Marriages

Published online by Cambridge University Press:  17 January 2008

John Murphy
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This article considers the basis on which the English courts exercise their discretion to refuse to recognise foreign marriages1 whose formal validity2 is beyond question and whose essential validity3 is probably also satisfied.4 It has been widely stated that this discretionary veto is to be wielded in accordance with the dictates of “public policy”. As far back as 1945, Lord Greene MR said that such matters were to be resolved “with due regard to common sense and some attention to reasonable policy”.5 Nearly 40 years later, Lord Simon, similarly minded and speaking in the House of Lords, was a good deal more emphatic. He said: “[t]here is abundant authority that an English court will decline to recognise or apply what would otherwise be the appropriate foreign rule of law when to do so would be against English public policy”.6 Perhaps surprisingly, this policy-based discretionary veto has commanded virtually no academic attention.7 It is my intention to address that anomaly. It is wholly inadequate, as is sometimes done, both by the courts (as we have seen) and academics, simply to refer glibly to “public policy” as though its contents were somehow self-evident and its meaning plain.8 It is also signally unenlightening merely to state, as Jaffey has done, that “[t]he premise should be that an invalidating rule of a domestic system, whether English or foreign, should only be applied to a given international marriage if there is a good reason for its application”.9 So doing merely recasts one nebulous term, “public policy”, as another, “a good reason”. Judicial synonyms have been scarcely any more illuminating. Take for example Lord Simon's famous enjoinder to have recourse to “common sense, good manners and a reasonable degree of tolerance”.10 A number of familiar criticisms can be made of the opacity of such broad terms as “common sense”, “good manners” and “a reasonable degree of tolerance”: they deny the common law the clarity, consistency and objectivity that are frequently (and correctly, in my view) thought to be necessary in order to legitimate and constrain the adjudicative function.11 But beyond these objections, two further, more particular criticisms can be made in respect of the invocation of “public policy” to deny recognition to “offensive” foreign marriages.

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Articles
Information
International & Comparative Law Quarterly , Volume 49 , Issue 3 , July 2000 , pp. 643 - 659
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Copyright © British Institute of International and Comparative Law 2000

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References

1. I use the term “foreign marriages” to depict marriages that take place outside the United Kingdom and involve at least one foreign domiciliary. I deliberately exclude, for reasons that will become obvious, marriages abroad involving two English domiciliaries even if they are both members of ethnic minority groups.

2. Formal validity is determined unerringly by reference to the lex loci celebrationis: see e.g. Berthiaume v. Dastous [1930] A.C. 79; Ogden v. Ogden [1908] P 46; Simonin v. Mallac (1860) 2 Sw. & Tr. 67.

3. The essential validity of marriage concerns the capacity of each of the parties both to marry in general terms, and their capacity to marry one another.

4. Doubts as to essential validity may always be raised because the test for essential validity is uncertain and tends to fluctuate between the (most prominent) “dual domicile test”—which amounts to a presumption against recognition unless both parties had capacity according to the law of their prenuptial domicile—and the rival “intended matrimonial home test” which stipulates that a single law should govern capacity: the law of the country in which the parties intend to establish their matrimonial home. For academic discussion of these (and other less well supported tests) see Fentiman, R., “The Validity of Marriage and the Proper Law” [1985] Cambridge Law Journal 256Google Scholar; Jaffey, A. J. E., “The Essential Validity of Marriage in the English Conflict of Laws” (1978) 41 Modern Law Review 38Google Scholar. See also Law Commission Working Paper No.89, Private International Law: Choice of Law Rules in Marriage (London: HMSO, 1985).Google Scholar

5. [1946] P 122, 129 (emphasis added). Approved and re-stated by Lord Parker CJ in Alhaji Mohamed v. Knott [1969] I Q.B. 1, 13.

6. Vervaeke v. Smith [1983] 1 A.C. 145, 164. For other instances of judges acknowledging the role of “public policy” in this context see Russ v. Russ [1964] P 315, 327–328 (per Willmer L.J); Cheni v. Cheni [1965] P 65, 97g (per Simon P).

7. It seems to have been accepted but not rigorously examined by a number of writers. See e.g. A. J. E. Jaffey, op. cit. n.4, at 50, Poulter, S., English Law and Ethnic Minority Customs (London: Butterworths, 1986) p.21Google Scholar, North, P. M. and Fawcett, J. J., Cheshire and North's Private International Law (London: Butterworth's, 1992) p.626Google Scholar and O'Brien, J., Smith's Conflict of Laws (London: Cavendish, 1999) p.462.Google Scholar

8. See e.g. S. Poulter, loc cit. chap.3; A. J. E. Jaffey, loc. cit., at 49–50.

9. A. J. E. Jaffey, op. cit. n.4, at 38 (emphasis added).

10. Cheni v. Cheni [1965] P 65, 99.

11. See e.g. Fuller, L., “The Forms and Limits of Adjudication” (1978) 92 Harvard Law Review 353, at 369Google Scholar; Duxbury, N., “Faith in Reason: The Process Tradition in American Jurisprudence” (1993) 15 Cardozo Law Review 601, at 610–632Google Scholar and also the wealth of literature referenced therein.

12. The recognition of foreign marriages is an arena particularly susceptible to accusations of cultural imperialism because of the wide diversity of religious and cultural traditions discernible among Britain's ethnic communities.

13. See further on this Poulter, S., “Hyde v. Hyde: A Re-appraisal” (1976) 25 I.C.L.Q. 475.CrossRefGoogle Scholar

14. [1972] 3 All E.R. 1026.

15. Ibid., at 1037.

16. I use this term to avoid distinguishing between bigamous marriages, potentially polygamous marriages and actual polygamous marriages the technical differences between which are unnecessary for present purposes. But for those interested, see S. Poulter, op. cit. n.13.

17. In the present context, these chiefly include forced and (to a slightly lesser extent) arranged marriages.

18. Of course, underlying this whole field there are a multiplicity of broader political issues that are unlikely to be raised by the litigants. One such issue, for example, is whether recognition might be refused as part of the general failure to recognise a foreign State and all its domestic laws (see e.g. the British refusal of foreign divorce decrees obtained from Rhodesia following the Universal Declaration of Independence in 1965: Adams v. Adams [1970] 3 All E.R. 572). Another such essentially political question surrounding this area of law is whether the rules governing the recognition of foreign marriages ought to be left to Parliament rather than the courts on the basis that the political process is more likely to produce a satisfactory solution to the problem of culture clashes. This has been the Australian approach in Part VA of the Marriage Act 1961. For analysis, see Neave, M., “The New Rules on Recognition of Foreign Marriages-Insomnia for Lawyers” (1990) 4 Australian Journal of Family Law 190Google Scholar; Nygh, P. E., Conflict of Laws in Australia (Sydney: Butterworths, 1995) pp.375–389Google Scholar; Sykes, E. I. & Pryles, M. C., Australian Private International Law (Sydney: Law Book Co. Ltd, 1991) pp.444–450.Google Scholar Other examples of broad political issues that surround the recognition of foreign marriages can be found in Law Commission Working Paper No.89, op. cit. n.4.

19. Freeman, M., “Images of Child Welfare in Abduction Appeals” in Murphy, J. (ed.), Ethnic Minorities, Their Families and the Law (Oxford: Hart Publishing, 2000).Google Scholar

20. That is, a marriage at which one or both parties was not present. See e.g. McCabe v. McCabe [1994] 1 F.L.R. 410 (discussed in Murphy, J., “The Recognition of Overseas Marriages and Divorces in the United Kingdom” (1996) 47 Northern Ireland Legal Quarterly 35).Google Scholar

21. At one point in his famous judgment in Cheni v. Cheni, Simon Precast “public policy” in terms of unconscionability. He said: “[t]he courts of this country will exceptionally refuse to recognise [a marriage]… on the ground that to give it recognition and effect would be unconscionable in the circumstances”: [1965] P 85, 98. See also Lord Parker CJ's equally crepuscular re-formulation in terms of “repugnance” occasioned to “decent-minded men or women”: Alhaji Mohamed v. Knott, supra n.5, at 15.

22. [1947] P 127.

23. See further Shyllon, F. O., “Immigration and the Criminal Courts” (1971) 34 Modern Law Review 135CrossRefGoogle Scholar, esp., at 136–138.

24. See e.g. McCabe v. McCabe [1994] 1 F.L.R. 410.

25. [1947] P 127, 141.

26. Sunstein, C., Legal Reasoning and Political Conflict (New York: Oxford University Press, 1996) pp.4–5 (emphasis added).Google Scholar

27. Sunstein, C., Legal Reasoning and Political Conflict (New York: Oxford University Press), at p.39.Google Scholar

28. , at p.35 (emphasis added).

29. Ibid., at p.47.

30. Sunstein states that commonality is reached at low levels of abstraction but it is more plausible that agreement is easier to reach at higher levels of abstraction: See Duxbury, N., “Ambition and Adjudication” (1997) 47 University of Toronto Law Review 161, at 166–167.CrossRefGoogle Scholar

31. Sunstein, C., op. cit. n.26, p.39 (emphasis added).Google Scholar

32. Sunstein, C., op. cit. n.26, at p.40 (emphasis added). The importance of highly-valued commitments to rational decision-making arc discussed below.Google Scholar

33. See e.g. Hillman, E., Polygamy Reconsidered (New York: Orbis Books, 1975)Google Scholar. For Muslims, for example, polygamy is only acceptable subject to the proviso that the man is able to provide adequately and equally for all his wives: see S. Poulter, op. cit. n.7, at pp.44–45.

34. Sunstein views such silence in “constructive terms”. His claim is that it can “help minimize conflict, allow the present to learn from the future, and save a great deal of time and expense”: C. Sunstein, op. cit. n.26, p.39.

35. See , Taylor, “Judicial Review: Improper Purposes and Irrelevant Considerations” [1976] Cambridge Law Journal 272.Google Scholar

36. Deciding on the basis that “X is preferable to Y” compels the decision-maker to question the depth of his or her commitment to X. In cases where only X is acknowledged to be at stake, no such evaluation is necessary.

37. The fact that I consider balancing exercises of this kind to be a vital part of the adjudicative process should not be seen as an attachment to Dworkian principle-based decision-making. I am as happy for the decision-maker to take account of policy considerations as principles, not least because, ultimately, Dworkin's distinction between the two is unsustainable (see e.g. Fish, S., Doing What Comes Naturally: Change, Rhetoric and the Practice of Theory in Literary and Legal Studies (Oxford: Clarendon Press, 1989) pp.369–370).CrossRefGoogle Scholar

38. See e.g. S. Poulter, op. cit. n.7, at p.v.

39. For reported examples see R. v. Birmingham Licensing Planning Committee, ex p. Kennedy [1972] 2 Q.B. 140 and Pilling v. Abergele UDC [1950] 1 K.B. 636.

40. Art.1(1). Recall also that Art.12 of the European Convention on Human Rights and Fundamental Freedoms confers an equal right to “marry and found a family” upon all “men and women of marriageable age”.

41. Shan, S., In My Own Name (London: The Women's Press Ltd, 1985) p.24.Google Scholar

42. Ballard, C., “Arranged Marriages in the British Context” [1978] New Community 181, at 184.Google Scholar

43. Loc cit.

44. As Catherine Ballard comments, “[t]here is an obvious contradiction between the South Asia view of marriage as a contract between two families which should be arranged by parents on their children's behalf, and the contemporary Western ideal that an intimate personal relationship should exist between a couple before they make a decision to marry: Ibid., at 181 (emphasis added).

45. I am not suggesting here that all arranged marriages should be denied recognition. They are not all ipso facto non-consensual. Often, both spouses will accept the practice (albeit with some trepidation) because of their own commitment to the religious or cultural premise for such marriages. Rather, all that I am saying is that, where one spouse contests the validity of the marriage upon entry into this country, the court may legitimately exercise its discretion to deny recognition on the basis of a commitment to consensual marriages, regardless of the protestations of the other spouse.

46. Values of instrumental worth can normally be measured in financial terms; values of intrinsic worth cannot. Neil Duxbury has captured the point well. “Whereas fungible property has a purely economic or instrumental value, personal property is property that the owner is bound up with to such a degree that its loss would cause him or her pain that could not be relieved simply by replacing the object with other goods of equal market value. Thus, a credit card is likely to be fungible, whereas many items of jewellery [such as a wedding ring] will (for their owners) have more personal significance”: see Duxbury, N., “Trading in Controversy” (1997) 45 Buffalo Law Review 615, at 616.Google Scholar

47. Borrowing from, and extending the analysis of, Joseph Raz, the fact that the judges are able to acknowledge and choose between different cultural norms “inevitably upholds a pluralistic view” for “[i]t admits the value of a large number of greatly differing pursuits among which … [the judges] are free to choose”: see Raz, J., The Morality of Freedom (Oxford: Oxford University Press, 1986) p.399.Google Scholar

48. On the virtues of pluralism (and its distinctiveness from relativism) see Freeman, M., “Cultural Pluralism and the Rights of the Child” in Eekelaar, J. and Nhalpo, T. (Eds.), The Changing Family: Family Forms and Family Law (Oxford: Hart Publishing, 1998).Google Scholar

49. See S. Poulter, op. cit. n.7, at pp.16–17 and the sources there cited.

50. The Marriage Act 1949, s.2 provides: “A marriage solemnised between persons either of whom is under the age of sixteen shall be void”.

51. As to the existence and extent of any doubt, see S. Poulter, op. cit. n.7, at p. 18.

52. Alhaji Mohamed v. Knott, supra n.5. Although the marriage of the 13-year-old in this case was recognised, it is clear from Parker CJ's judgment that the court reserved the right in other cases to refuse recognition.

53. This might occur when A seeks to marry another person in this country and denies the validity of the foreign marriage. It might also occur where A has been permanently incapacitated so as not to be able to voice an opinion.

54. Of course, the broader political considerations to which I adverted earlier (at n.18) would also arise here. But for the purposes of disposing of this case, I am concerned only with those arguments that the litigants themselves would raise.

55. Supra n.5.

56. Deech, R., “Immigrants and Family Law” [1973] New Law Journal 110Google Scholar, at 111. For further recognition of the concerns associated with the instability of child-marriages, see S. Poulter, op. cit. n.7, at p.17 and A. J. E. Jaffey, op. at. n.4, at 45.

57. See S. Poulter, loc. cit.

58. There is little point in fixing an age-based threshold for child marriages where the avowed reason for so doing is to protect the vulnerabilities of the child that stem from immaturity. The better approach is to set a limit based upon the child's stage of development. It is implicit from his judgment in Knott (supra n.5, at 15–16) that Parker CJ was sympathetic to this approach. Karsten, I.G.F., “Child Marriages” (1969) 32 Modern Law Review 212Google Scholar, esp. at 215–216 (where a minimum age approach is preferred).

59. It is just such dangers that prompted Mrs Victoria Gillick into litigation in the landmark case of Gillick v. West Norfolk and Wisbech AHA [1986] A.C. 112.

60. Eekelaar, J., “The Emergence of Children's Rights” (1986) 6 Oxford Journal of Legal Studies 161.CrossRefGoogle Scholar

61. The basic interest was seen in terms of “[g]eneral physical, emotional and intellectual care”: Ibid., at 170.

62. The developmental interest involves allowing a child's natural capacities to develop to full advantage in such a way “as to minimize the degree to which they enter adult life affected by avoidable prejudices incurred during childhood”: loc. cit.

63. This is “the freedom to choose his own lifestyle and to enter social relations according to his own inclinations uncontrolled by the authority of the adult world”: Ibid., at 171.

64. Though a brief account of how this is achievable is provided in “The Emergence of Children's Rights” (op. tit. n.60, at 171) a much fuller account is provided in Eekelaar, J., “The Interests of the Child and the Child's Wishes: The Role of Dynamic Self-Determinism” in Alston, P. (ed.), The Best Interests of the Child (Oxford: Clarendon Press. 1994) p.42, esp. pp.53–57.Google Scholar See also Freeman, M., The Rights and Wrongs of Children (London: Frances Pinter, 1983) p.57.Google Scholar

65. For an account of the problems associated with relativism, see M. Freeman, op. tit. n.48.

66. As Raz explains: “A and B are incommensurate if it is neither true that one is better than the other nor true that they are of equal value”: see J. Raz, op. cit. n.47, at p.122.

67. Warner, R., “Excluding Reasons: Impossible Comparisons and the Law” (1995) 15 Oxford Journal of Legal Studies 431, at 433.CrossRefGoogle Scholar

68. Altman, S., “Should Child Custody Rules be Fair?” (1996–1997) 35 Journal of Family Law 325Google Scholar, at 353. Of course, it might be objected that this is not really an instance of incommensurability because Altman's conclusion appears to be premised upon a comparison between parental claims to fairness and the child's interest in having his or her welfare dealt with as the paramount consideration. But the truth is that he goes no further than acknowledging that the claim to fairness to parents is an incidental issue. So much is clear from the fact that he dismisses this claim as not worth discussing. It is, therefore, an example of incommensurability and the parental claims play no part in the formulation of the ultimate decision on the basis of what Warner would call “non-comparative exclusion”. It is an instance in which one value at stake (the claim to fair treatment for parents) is acknowledged but not included in the rationale for the final decision. And this is precisely what I am arguing for.

69. J. Raz, op. cit. n.47, at p.399.

70. Art.19 (emphasis added).

71. See Van Bueren, G., “The United Nations Convention on the Rights of the Child: The Necessity of Incorporation into United Kingdom Law” [1992] Family Law 373.Google Scholar

72. See s.1.

73. See the text associated with n.11, supra, as well as the literature referenced therein.

74. See n.34, supra.