Harsh and Inequitable Consequences - Application of the ‘Four Factors’
The judgment in Hudson v Leigh should have led to better outcomes and protections for those minority ethnic women who undertake a religious ceremony of marriage without completing, erroneously, the necessary legal formalities.
However the case of Dukali v Lamrani[208] demonstrates the harsh realities such women can face. In this case a Moroccan couple, both of the Muslim faith entered into what they both believed to be a civil ceremony of marriage at the Moroccan Consulate in London. A notary conducted their marriage, as they specifically wanted a legal marriage and not a religious one. Following this marriage ceremony a property, the matrimonial home, was purchased and conveyed in the husband's sole name. The couple had a child shortly after marriage. The relationship broke down about seven years later and the wife petitioned for divorce. Her action prompted the husband to issue a parallel petition for divorce in Morocco. The Moroccan divorce made a very modest financial provision for the wife. The wife argued that she had a right to apply for financial relief following an overseas divorce under Part iii of the Matrimonial and Family Proceedings Act 1984 (the 1984 Act).The husband opposed her application for two reasons, first because there was no marriage capable of recognition in England and Wales and secondly because the Moroccan divorce should not be recognised in this jurisdiction. The court's judgment had to decide if the wife could establish that there had been a marriage within the wording of section 12(1)(a) of the 1984 Act and if so, whether the Moroccan divorce was recognisable in England and Wales as required by s12(1)(b).
The court found the marriage was not valid due to the wholesale failure to comply with the formal requirements of English law.[209] [210] [211] [212] The marriage was not void due to it not being a marriage under the 1949 Act and therefore it was declared to be a non-marriage.22 Accordingly the wife was refused leave to apply for any financial orders under Part Ill of the 1984 Act because the marriage, being a non-marriage, did not meet the requirements of section of the 1984 Act. 7
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