Discussion of Dukali

Examining the four factors stemming from Hudson v Leigh, it was unexpected that the Court was not minded to deem the marriage ceremony in Dukali as at least void because on the face of it, there is compliance with the four factors.

Although the four factors was a non-exhaustive list, there was no explicit hierarchy, as presented by the judge in Hudson, it was interpreted to mean that they all held equal or similar weight when determining the existence of a marriage, without focus on the external appearance of a ceremony. However in Dukali v Lamrani2³ this does not appear to be the case. Despite the alleged legality of the ceremony, intention of both the parties and the staff of the Consulate where the marriage took place2⁴ (factor c) was side-lined, despite evidence to the contrary.

In applying the non-exhaustive factors that came from Hudson v Leigh, there seems to be difficulty in overcoming the external factors, (a) and (b) of such marriages. It has been hypothesised that these factors have in fact cre­ated a hierarchy.^[213] The first tier of the hierarchy examines the purported com­pliance with the legal formalities under the Marriage Act and the second tier scrutinises the intention of the parties, officiating officers and those present at the ceremony. In irregular marriage ceremonies, the Court will first look to see if there has been compliance with the Marriage Act 1949, the form of the mar­riage, in the event there has not been so, then intention of the parties cannot override this initial failure to comply.

In determining the existence of a marriage, should the law focus on the ex­ternal appearance (compliance with formalities) of the marriage or instead focus on the intention of the parties?2^[214]

The judgment from Dukali2^[215] and other English cases2^[216] would seem to sup­port the proposed hierarchy model solely because intention of the petitioner(s) was rejected. In Dukali/^[217] confirming the parties' intentions and beliefs regard­ing the validity of their marriage, the ceremony took place in an official build­ing, the Moroccan Consulate in London. The wife said in her statement dated 23 December, 2011:

. The venue for the marriage was always agreed by me, [the husband] and both our parents and was intended to be a proper civil marriage in the fullest sense. I would not have agreed to the marriage if it had been a religious only marriage. I can confirm that as far as either of our fami­lies were aware as was I and [the husband] that the marriage was a valid civil ceremony...^[218]

It could be argued that the intention of both parties in the Dukali case was very clear, as the formality involved indicates that the purported marriage was considered to be a lawful one and took place in an official and subjectively relevant building, not at home or in secret. The ceremony itself was a very pub­lic affair. The husband only became aware of the potential to evade his marital responsibilities upon receiving legal advice calling into doubt the legal nature of the marriage.

Despite the facts in the Dukali case meeting a somewhat higher threshold in terms of the external Hudson v Leigh factors, still little, if indeed any weight was given to the intentions of both the parties. The hierarchy model can ac­count for this finding, in assessing questionable marriage ceremonies; the first question the court examines is the compliance with the 1949 Act. Only if there has been compliance, then party intention becomes a relevant factor. Because it was held in Dukali “manifold non-compliance with every requirement of the Marriage Acts”^{[219] [220] the role of intention was outweighed by the external factors, namely the formal validity of the marriage ceremony.}

Looking at the four factors arising from the Hudson case, the crucial point is this: factor (a), viz. the “purported lawfulness”, is being interpreted as compli­ance with formal requirements as laid down in the 1949 Act. In addition, this compliance is set on top of a hierarchy, or rather: It is made a conditio sine qua non, rather than one of several points to be considered.

It is therefore argued the guidance offered in Hudson v Leigh,3² has been subject to judicial shift in application to case law. Following Chris Bevan's analysis and model of hierarchy, it becomes strikingly clear that if a ceremony marriage fails to comply with the formal requirements of the 1949 Act - i.e. the external factors arising from Hudson v Leigh override the other internal ones. In fact it could be said the internal factors are not given any consideration when classifying the ceremony as a non-marriage, if appearance is not familiar to a Christian form of marriage.

This result seems to indicate for those of the minority ethnic groups, which the vast majority of non-marriage cases seem to concern, the default position is that marriage ceremonies that fail to comply with the statutory framework of marriage will be non-marriages based on appearance alone. The judicial shift, instead of offering protection seems to disproportionately disadvantage certain groups causing injustice and hardship through non-marriage.

Rebecca Probert, a legal historian specialising in the law of marriage agrees that non-marriage is a judicial creation however argues that upon working through the neglected terms of the current marriage act and their logical im­plications for different situations, non-marriage can be marked out as a ‘rela­tively narrow scope’.^{[221] [222] [223]}

The law is does not compel judges to come to this conclusion of non-mar- riage, there is no mention of non-marriage in the current Marriage Act, the concept of non-marriage remains a judicial creation that has been confirmed by the Court of AppeaP⁴ as being correctly applied in the case of Dukali v Lamrani.35

This author argues the current law on non-marriage is discriminatory and a disproportionately large number of British citizens will be adversely affected by the denial of financial relief upon the breakdown of their marriages. Already there has been an alarmingly high number of non-marriage cases reported arising from Islamic marriages conducted in this jurisdiction. The Marriage Act 1949 reflects the interests of the early nineteenth century and requires re­form to account for the significant changes that have occurred in society.

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