The Court of Appeal has refused a university professor’s appeal to disprove the validity of his 16-year marriage. The case was first heard in May 2015 at the Oxford Family Court by HHJ Tolson QC after a documentary discrepancy was discovered during divorce proceedings. Lord Justice McFarlane defended the original judge’s application of ‘presumption of marriage’, meaning that divorce proceedings can now recommence.
Professor Khaled Hayatleh and Mrs Reem Mofdy married in Syria on 25th February 1999 with an official religious ceremony in Homs. The wife was present at the ceremony but the husband, who lived in England, was not and so his brother stood in as proxy (a standard formality). It was an arranged marriage to which both parties, who had known each other as children, consented.
The couple then travelled to Jordan to obtain entry clearance for the wife to join her husband in England. The latter in fact wrote to his English MP to hasten this process, explaining that the pair were “already married according to both Islamic and Syrian laws”. Once the wife had arrived in England, Prof Hayatleh threw a celebration party to introduce “his wife” to his friends and colleagues. In August 2000, they had a daughter together which, under Syrian law, cemented their marriage as the birth of a child enables couples to apply for their final civil registration. Three years later, the wife became a British citizen by naturalisation. The relationship ended in 2013 when Prof Hayatleh petitioned for divorce on the 8th February.
The divorce proceedings would have run as normal, had a District Judge not cast doubt on the parties’ marriage documentation on 3rd June 2013. At this point, the proceedings were put on hold in order to untangle the ambiguities. Investigations were undertaken in Syria resulting in conflicting records of the parties’ civil status. The first document (‘D5’), dated 10th July 2014, is an individual census record abstract of Arab Palestinians which names the pair ‘husband and wife’. The second document (‘D19’), dated 8th February 2015 under the same government agency, records the husband’s marital status as ‘single’, a finding which is echoed in the final document, dated 10th February 2015.
According to lex loci celebrationis, the marriage is governed by Syrian law and so an expert in this field was hired to analyse the findings. Giving oral evidence in court after his first report, dated 12th September 2014, Dr Anas Bao said that the marriage was “valid according to the provisions of Syrian laws”. In his second report, 10th November 2014, he explained that marriages must be registered for administrative purposes in the Civil Register to be deemed valid in Syrian law. However, unregistered marriages still retain their full Sharia effects. Civil registration confirms inheritance, kinship and the husband’s control and thereby denotes a couple’s social status. But Dr Bao’s opinion about the validity of the marriage changed with his third report, 10th July 2014. It had emerged that the registration certification had been obtained alone by the wife’s father and, since his sole presence was not enough to register the birth of a child, Dr Bao admitted that a new court decision was necessary.
Another complicating factor was the absence of documentation in general, such as the second religious court judgment and marriage certificate. Due to ongoing conflict in Syria, the documents were either unobtainable or destroyed after the Homs courthouse suffered bomb damage. Arguing that the contradictory D5 and D19 were of equal weight, HHJ Tolson decided to discount both.
Confronted with conflicting interpretations, the judge chose to apply the ‘presumption of marriage from cohabitation and reputation’ from paragraph 7.11 of Rayden and Jackson on Divorce. He came to this conclusion because the couple had lived for 13 years calling themselves husband and wife. By petitioning for divorce, the husband had already proved that he considered his marriage valid and the matter only became contested after the County Judge suspected some irregularity. The judge therefore ruled that he could not attach any significant weight to the husband’s case because his assertions were “so starkly in conflict with his words and actions”.
The husband chose to appeal this decision, arguing that the judge was wrong to rule their marriage valid owing to the lack of evidence and the wife’s failure to deliver some documents. He also contended that the judge was wrong to apply presumption of marriage since the issue revolved around the registration, not the ceremony. Prof Hayatleh also pleaded new fact as he uncovered that the wife had been in contact with Dr Bao before the hearing, potentially affecting his neutrality and her credibility. Judge McFarlane gave a more detailed account of the law behind the presumption of marriage and thereby explained that the difference between the marriage ceremony and registration was irrelevant in application of the presumption of marriage principle. He concluded that the couple had “behaved at all times as if they were to all intents and purposes married” and “there could hardly be clearer proof that the husband, even at the end, regarded this as a valid marriage”.
The Court of Appeal judge also dismissed the criticism of the wife for not providing certain documents as there was no evidence of the wife’s assertion that she had them and the onus was on the husband to prove the marriage was invalid, not the wife to offer further evidence that the marriage was valid. Addressing the wife’s contact with Dr Bao prior to the hearing, McFarlane LJ conceded that it was “ill-judged behaviour” but there was no evidence that she influenced the expert’s findings.
Lord Justice McFarlane concluded:
“Contrary to the husband’s case on appeal, it is not only impossible to hold that the judge was wrong in his finding, in my view, on the evidence, it was the only finding which was open to him.”
On the assent of Lord Justice Briggs and Lord Justice Underhill, Prof Hayatleh’s appeal was dismissed and the parties are now able to continue with their divorce proceedings as before. Once the decree absolute is obtained, the wife, who suffers from multiple sclerosis, will finally be entitled to financial provision.
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