MM v NA [2020] EWHC 93 (Fam): High Court Recognises A Marriage Celebrated In A Non-Internationally Recognised Country

This post has been contributed by Dr Manos Maganaris, Module Convenor for Conflict of laws.

The issue that the High Court (Family Division) was faced with in MM v NA [2020] EWHC 93 (Fam), was whether a foreign marriage could be recognised in the UK, if the State where it was celebrated was not internationally recognised. Both MM and NA are of Somali origin. MM is a Dutch national who was born in Holland and has lived in the United Kingdom since 2001. NA was born and raised in Somaliland and was living there prior to her marriage. The couple met in Somaliland in 2012 and in 2013 they attended a religious ceremony of marriage in the city of Hargeisa, which was later validated and a formal marriage certificate issued by a local district court. MM and NA subsequently applied to the English Court seeking a formal declaration as to whether or not their marriage was at its inception a valid marriage and recognised in the UK.

The complication in this case was that the country where the marriage was celebrated in is not an internationally recognised state. Somaliland is a territory on the coast of the Gulf of Aden, which declared independence in 1991. It is not internationally recognised but, nevertheless, has a working political system, government institutions, a police force and its own currency.

The Court asked two questions: a) are the parties validly married and b) if this is the case, is the marriage entitled to recognition in the in UK?

As regards the first question, the court, after considering issues of formal and essential validity and taking into account the various systems of law in Somaliland, concluded that the parties were validly married according to the law of that country.

In answering the second question, the Court referred to the ‘one voice’ doctrine. The doctrine takes the form of the demand placed on the executive and the courts to speak with ‘one voice’, when it comes to matters relating to the recognition of States. Reference was made, in that respect, to the House of Lords decision in Government of the Republic of Spain v SS “Arantzazu Mendi” (The Arantzazu Mendi) [1939] AC 256. At 264, where Lord Atkin stated:

“Our State cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another. Our Sovereign has to decide whom he will recognise as a fellow sovereign in the family of States; and the relations of the foreign State with ours in the matter of State immunities must flow from that decision alone.”

The Court then looked at exceptions and referred to cases going back to the post-civil war US ( US v Insurance Companies 89 U.S. 99), post-World War II Eastern Germany (Carl Zeiss Stiftung v Rayner & Keeler Ltd. (No. 2) [1967] 1 AC 853, 954), the Turkish Republic of Northern Cyprus (Hesperides Hotels Ltd and Another v Aegean Turkish Holidays Ltd and Another [1978]), Ciskei (one of the ‘States’ created by Apartheid-era South Africa) (Gur Corporation v Trust Bank of Africa Ltd [1987]), and Southern Rhodesia (Adams v Adams (Attorney-General Intervening) [1971]).

The Court also referred to the Advisory Opinion of the International Court of Justice of 21 June 1971 on the continued presence of South Africa in Namibia:

“while official acts performed by the Government of South Africa on behalf of or concerning Namibia after the termination of the Mandate are illegal and invalid, this invalidity cannot be extended to those acts, such as, for instance, the registration of births, deaths and marriages, the effects of which can be ignored only to the detriment of the inhabitants of the Territory.” (at §125)

Accordingly, the Court found that an exception to the one-voice doctrine is acceptable in matters of private rights. It further added that it had conferred with the Foreign and Commonwealth Office of the UK Government, who provided reassurance that the Government would be unlikely to object to the recognition of a Somaliland marriage on the basis that it does not recognise Somaliland as a State.

As such, Mrs Justice Roberts’ proposal was:

“to grant the declaration which is sought in this case: these parties, MM and NA, are validly married to one another. Their marriage was valid and subsisting as at the date of their application to this court and it is entitled to formal recognition according to the law of England & Wales.” (at para 70)

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