NB v MI [2021] EWHC 224 (Fam)

Capacity to marry The application for a declaration of non-recognition of a Muslim marriage pursuant to the inherent jurisdiction of the High Court and the petition for nullity were unsuccessful: the wife had capacity (though maybe not wisdom) when she got married, so the marriage was valid under English law at its formation; even if the marriage had been voidable the judge would have refused to grant a non-recognition declaration as that would be contrary to statute; and the condition for granting leave out of time for the nullity petition was not satisfied. The judgment contains guidance on capacity to marry.

Extract from judgment

26. Distilling all this learning results in some straightforward propositions:

i) The contract of marriage is a very simple one, which does not take a high degree of intelligence to comprehend.

ii) Marriage is status-specific not spouse-specific.

iii) While capacity to choose to engage in sexual relations and capacity to marry normally function at an equivalent level, they do not stand and fall together; the one is not conditional on the other.

iv) A sexual relationship is not necessary for a valid marriage.

v) The procreation of children is not an end of the institution of marriage.

vi) Marriage bestows on the spouses a particular status. It creates a union of mutual and reciprocal expectations of which the foremost is the enjoyment of each other's society, comfort and assistance. The general end of the institution of marriage is the solace and satisfaction of man and woman.

vii) There may be financial consequences to a marriage and following its dissolution. But it is not of the essence of the marriage contract for the spouses to know of, let alone understand, those consequences.

viii) Although most married couples live together and love one another this is not of the essence of the marriage contract.

ix) The wisdom of a marriage is irrelevant.

27. Therefore, the irreducible mental requirement is that a putative spouse must have the capacity to understand, in broad terms, that marriage confers on the couple the status of a recognised union which gives rise to an expectation to share each other's society, comfort and assistance.

28. It is not necessary for a person getting married to have an awareness of the detail of the financial consequences of the union, let alone of the law of financial remedies. Nor is there imposed on a person getting married a duty to cohabit, or to engage in sexual relations, or to procreate with his or her spouse. Modern marriage has moved on a long way from the days when canon law ruled the legal roost.