Boughajdim v Hayoukane [2022] EWHC 2673 (Fam)21 October 2022
Published: 05/12/2022 09:00
https://caselaw.nationalarchives.gov.uk/ewhc/fam/2022/2673
MacDonald J. Long-running complex dispute over validity of marriage. W wanted a divorce; H said there was no marriage to dissolve.
A valid marriage can be conducted in Morocco without a formal ceremony. W argued that a marriage had taken place albeit without a formal wedding ceremony, and H that it had not. Although parties had not appeared before two notaries as required by Moroccan law, subsequently W applied for recognition of the marriage in Morocco in reliance on a force majeure exception to explain why it had not been registered at the time. After hearing from 14 witnesses, the Moroccan court recognised the marriage. H’s complaint of perjury by W and her parents was unsuccessful after 19 hearings.
Held: Moroccan courts, courts of competent jurisdiction, had already decided whether the legal conditions required for an act of marriage in Morocco were met on the facts of the case, including whether there had been consent, a dowry and wedding or engagement parties in the presence of family. Per Lord Denning in Thompson v Thompson, estoppel per rem judicatam applied although this estopped the parties not the court.
Starkowski v Attorney-General [1954] AC 155 (HL) suggested that in cases concerning retrospective foreign legislation giving rise to marriage the identification of the lex loci celebrationis remains the precursor to determining the question of whether the marriage is valid. Here, even though there was no formal ceremony, the parties had complied with the local form in the lex loci celebrationis sufficiently for the court to be satisfied that it was dealing with a valid marriage having regard to the principle of locus regit actum. W’s divorce petition could proceed.
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