Judge admits he is powerless to quash

marriage of British Muslim girl who was

taken to Pakistan and forced to wed at
gunpoint aged 14
Top family judge says he cannot void marriage of girl
forced to wed at 14
She was taken to Pakistan by her family and threatened
with a gun
The teenager now has a one-year-old son and is in local
authority care
Judge says he cannot rule the marriage was 'at its
inception, void'
By Sam Webb

Mr Justice Holman ruled that - although the girl was under extreme duress and aged under 16
at the time - he was barred by statute from voiding the marriage

A judge says he cannot nullify the marriage of a teenage mother who says
she was forced at 'gunpoint' into becoming a bride when she was just 14.

Instead the girl, now 17 and a mother of a one-year-old, must defy her family
if she wants the union formally annulled, said Mr Justice Holman at the High
Court.

The teenager, who was born in Britain and whose family has lived here for
40 years, says she was shipped out to Pakistan to contract a forced marriage
with a 24-year-old man two years ago.

She told how she was subjected to 'harrowing' violence and menaced with a
gun to go through with the ceremony - and was two weeks later forced to
have sex with her husband, giving birth to his baby who is now aged just
over one.

After she came forward with her account, her local authority took both her
and her baby into care and asked Mr Justice Holman to formally declare that
her marriage - which effectively made her a rape victim - could never have
been recognised under English law.
However, in a unique decision, the judge ruled that - although the girl was
under extreme duress and aged under 16 at the time - he was barred by
statute from granting a declaration that her marriage was 'at its inception,
void'.

Expressing sympathy for the girl and the 'real stigma' she faced, the judge
said his hands were tied and he simply had no power to make a formal ruling
that 'there never was a marriage' capable of recognition in England and
Wales.

Despite the councils plea that the girl should not be forced to take 'an active
step' in defiance of her family, the judge said her only option was to launch
court action herself, seeking nullification of her marriage.

Whether she wanted to take that course was 'her own decision', he told the
court.

Mr Justice Holman said it was, according to the girls account, a 'grave

example of a marriage which was forced under considerable duress,
involving at one stage the production of a gun and physical violence upon the
girl'.

Her father, who moved to the UK 40 years ago and has been a British citizen
for three decades, and her older brother had accompanied her on the trip to
Pakistan, which culminated in her becoming an unwilling bride.
The teenager told how she was subjected to 'harrowing' violence and menaced with a gun to
go through with the ceremony. File picture

The judge added: 'The marriage was consummated about two weeks later,
after further threats to her if she did not permit her husband to have sexual
intercourse with her.'

The girls barrister, Vanessa Meachin, said: 'She is the victim of forced
marriage and rape. She is 17 and struggling with the complexities of the two
sets of legal proceedings that she is already involved in.

'It is unrealistic to consider that she is presently equipped to proceed with a

petition for nullity.'

Mr Justice Holman accepted that - as the girl was 'domiciled' in the UK; had
been put under duress; and, most importantly, was under 16 at the time of the
ceremony - the marriage was 'on the balance of probability, void' under
English law.

However, he said he was prevented from making a solemn declaration to that

effect by a section of the Family Law Act 1986, which states: 'No declaration
may be made by any court...that a marriage was at its inception void'.

'She is the victim of forced marriage and rape.

She is 17 and struggling with the complexities of
the two sets of legal proceedings that she is
already involved in. It is unrealistic to consider
that she is presently equipped to proceed with a
petition for nullity'
- Barrister Vanessa Meachin

If he were to grant the declaration sought by the local authority, the judge
said he would 'frankly, be bypassing the statutory prohibition by a mere
device. I cannot do that and I am not prepared to do that'.

He added: 'I do understand and have sympathy with the point and position
that it might be particularly defiant by the girl of her family for herself to
initiate proceedings for a decree of nullity, although she now has little
contact with most members of her family.

'The reality is that, sooner or later, she needs fully to resolve her legal status
and to face up to the obviously necessary step of obtaining a decree of
nullity.

'That, however, is a matter for her own decision, her own timing, and her
own choice. For the reasons that I have now given, I simply refuse to make
the order sought.'

The court earlier heard that the girls husband was not named on her babys
birth certificate and his whereabouts are unknown.

However, he still has the rights of a putative or non-marital father and could
conceivably play a part in the care proceedings.
Forced marriage again in the news: Judge admits he is powerless to quash
marriage of British Muslim girl who was taken to Pakistan and forced to wed
at gunpoint aged 14
Michael Horton
Coram Chambers

I wrote about a forced marriage case in the Court of Protection in the September edition of the
newsletter (Nullity in the Court of Protection? Sandwell MBC v RG & Others [2013] EWHC 2373
(COP)). Holman J has made news in another recent case: A Local Authority v X [2013] EWHC 3274
(Fam), in which judgment was given on 22 October 2013.

Let us start with some basics:

since 1970, lack of consent to a marriage has not, as you might expect, rendered a
marriage void. Instead, under s 12(c) of the Matrimonial Causes Act 1973, lack of
consent makes a marriage voidable. Unless and until the court issues a decree of nullity,
the marriage remains valid;
in addition, you cannot petition for nullity on the basis of lack of consent if more than
three years have passed since the date of the marriage: s 13(2) (unless the Petitioner
had suffered from mental disorder in which case the court has a discretion to extend the
three year period);
the court may make a declaration as to whether a marriage did or did not subsist on a
particular day under s 55(1) of the Family Law Act 1986;
the court may make a declaration as to whether a marriage celebrated overseas is
entitled to recognition in England and Wales;
the court may declare that a marriage was at its inception valid (also s 55 of the 1986
Act);
however, the court may not make a declaration that a marriage was at its inception
invalid: s 58(5) of the Family Law Act 1986. The only route to the court making such a
finding is by way of a nullity petition.
In many of the forced marriage cases, an individual is taken to a foreign country and forced into a
marriage. Where that person has lacked capacity, the courts have been willing to allow others
(usually a local authority) to seek a declaration that the marriage should not be recognised under
English law (eg Westminster CC v C [2009] Fam 11). More controversially, the individual herself was
able in B v I (Forced Marriage) [2010] 1 FLR 1721 to obtain a declaration that there was no marriage
capable of recognition in England and Wales. In that case, the applicant had been taken to
Bangladesh aged 16, and forced to undergo a ceremony which she believed to be a betrothal
ceremony but which was in fact a wedding. More than 3 years later she was able to escape and to
apply to the court. She was barred under s 13(2) from petitioning for nullity, but the court granted a
declaration of non-recognition.

The facts in A Local Authority v X were even more stark. The respondent mother was now aged 16.
Care proceedings were taken in respect of her baby. The local authority sought permission to invoke
the inherent jurisdiction of the High Court and a declaration that Xs marriage should not be
recognised. Xs parents came to the UK about forty years ago from Pakistan. The judge considered it
was likely that they had adopted a domicile of choice here in England, so that X would have been
domiciled in England too. When X was fourteen, she was taken to Pakistan and married Mr Y. The
judge made no findings, despite the lurid headlines taken from the newspaper quoted at the outset
of this article, but Xs case was that she entered into the marriage under considerable duress,
involving at one stage the production of a gun and physical violence upon her.

Under English law, a marriage is void (s 11(a)) if either party is under the age of sixteen. This rule
applied to X because she had an English domicile even though the marriage was celebrated outside
the jurisdiction: Pugh v Pugh [1951] P 482. The local authority sought the declaration for non-
recognition of the marriage for two reasons. First, it would be advantageous to X to have the legal
status of her marriage clarified. Secondly, it was important to ascertain the legal status of the childs
father. If he was validly married to X he would have parental responsibility and would be entitled to
party status. Holman J found as a fact, for this purpose, that the marriage was void. Although the
father might have believed the marriage was valid, this would not help him as he was not domiciled
in England and Wales at the time of the birth (via s 2 of the Children Act 1989, s 1(3) of the Family
Law Reform Act 1987, and s 1(2) of the Legitimacy Act 1976). The father therefore did not have pr
for the child.

At an earlier stage of proceedings, the judge had invited X to consider issuing a nullity petition. X had
not done so. As a victim of forced marriage and rape, her lawyers had told the court that she was not
presently equipped to proceed with a nullity petition herself, although she supported the local
authoritys application for a declaration of non-recognition. However, Holman J held that he could
not make the declaration sought by the local authority. The marriage in this case was void because X
had been 14. To make a declaration that the marriage was void would fall foul of s 58(5) of the
Family Law Act 1986, preventing the court from declaring that a marriage was at its inception invalid.
Unlike B v I, there was nothing to stop X from issuing a petition no 3 year time limit applies to
nullity petitions alleging the marriage is void.

The judge concluded by saying that he had sympathy for X and her position that it might be
particularly defiant by her of her family for her herself to initiate proceedings for a decree of nullity.
Sooner or later she would need fully to resolve her legal status and to face up to the obviously
necessary step of obtaining a decree of nullity. But that was a matter for her to decide, in her own
time and of her own choice.

This case highlights a range of inconsistencies and difficulties with the law of nullity:
 the rationale behind making marriages only voidable for lack of consent may have
passed muster in 1970, but it looks odd now. At common law, a person who did not
validly consent to the marriage could ratify the marriage by a valid consent given
subsequently. The question was asked why, if the parties want their marriage to be
valid, should they run the risk of having the validity of their marriage imperilled by a
third party. This risk is probably very small now. There is a strong case for reverting to
the original rule and providing that lack of consent should render a marriage void;
even if lack of consent remains a basis for a marriage being voidable and not void, the
three year rule needs modification. Forced marriage was wholly outwith the Law
Commissions contemplation when they made their recommendations on nullity in
1970. Either the three year should not apply at all to petitions based on lack of consent,
or the discretion to extend the period should be broadened (and not just limited to
cases where the petitioner had suffered from mental disorder);
is there a case for allowing a suitable person, with leave of the court, to bring nullity
proceedings on behalf of an individual? After all, the Forced Marriage Act allowed a third
party to bring proceedings for a forced marriage protection order, to restrain conduct
intended to bring about the forced marriage. Why not allow a third party to apply to
undo the forced marriage?