Validity – Declaration – Respondent lacking capacity having married abroad in arranged marriage ceremony
Sandwell Metropolitan Borough Council v RG and others: Court of Protection: 4 July 2013
The instant proceedings concerned, inter alia, RG. RG was aged 38. He had arrived in the UK, accompanied by his parents and siblings, while young. The parents retained property in India, to which they periodically returned. RG had moderate learning difficulties, was of low intelligence and could exhibit challenging behaviour. The medical prognosis was that his condition was likely to be lifelong with little or no prospect of improvement.
He lived in accommodation provided and staffed by the local authority. It was common ground that RG lacked the capacity to make a range of decisions as to where to reside, his care package, his contact with others, and certain other matters. It was further agreed, with one exception, that it was in his best interests that there be a range of declarations and other orders. The issue that had not been agreed concerned the annulment of RG’s marriage; a course of action which the local authority favoured.
In 2009, RG had been taken by his parents to the Punjab where he participated in a marriage ceremony arranged by the parents of the two participants. Both families were members of the Sikh community. The marriage had formal validity under the law of the place where it was contracted. The wife (SK) only discovered after the marriage that RG was ‘not like a normal person’. The marriage was consummated on the night of the wedding and sexual intercourse took place on a few further occasions. RG then returned to England where he was subsequently joined by SK. SK accepted that she could not provide RG with the support, daily care and assistance that he needed so did not resist that he remained living in the local authority-provided accommodation.
However, she was opposed to the annulment of the marriage, although she conceded that it would be a serious criminal offence if she were to touch RG in a sexual manner. SK visited RG several times a week and, although the visits were quite short, he reacted to them with pleasure and appeared to gain pleasure from the visits and from the relationship. He reacted badly to references of divorce and called SK his wife. The authority asked that the court declare it was in the best interests of RG for the Official Solicitor to issue a petition of nullity on his behalf and to seek to obtain a decree nullity if the matrimonial court was satisfied that RG was entitled to such a decree. The Official Solicitor did not support the petition for a decree of nullity.
The authority submitted, inter alia, that, on the assumption that RG had been domiciled in England at the date of the marriage, and that under the law of England he had lacked capacity to contract a marriage, then the marriage should be annulled in RG’s interests. Consideration was given to section 12 of the Matrimonial Causes Act 1973, which prescribed the grounds upon which a marriage would be voidable, and to sections 1(5) and 4 of the Mental Capacity Act 2005 (the 2005 act).
The court ruled: It was not likely that RG would ever have capacity in relation to the matter (section 4(3) of the 2005 act). RG had, so far as reasonably practicable, participated in the decisions by means of his interviews with medical professionals, his solicitor, an independent social worker and with the judge (section 4(4) of the 2005 act). Further, the views of the authority, RG’s mother and SK had been taken into account (section 4(7) of the 2005 act).
So far as they were ascertainable, RG’s wishes and feelings were to remain married to SK. It was difficult to ascertain RG’s beliefs and values, but he did have some awareness of being a Sikh. If he had had the capacity to contract the marriage it did not seem likely that he would have wished to bring shame and ostracism on SK by ‘divorcing’ her or seeking to annul their marriage. RG could not gain the support, pleasures and benefits of a marriage as normally understood, but he did gain some pleasure and benefit from the marriage and relationship. His best interests did not require or justify that the marriage be annulled (see , , , ,  of the judgment). It would be excluded from the otherwise agreed order those parts which provided for the Official Solicitor to present a petition for the marriage to be annulled (see  of the judgment). City of Westminster Social and Community Services Dept v C  2 FCR 146 considered; XCC v AA  2 All ER 988 considered.
Michelle Pratley for the authority; Elizabeth Isaacs QC for RG and his brother (GG) by the Official Solicitor; Joseph O’Brien for RG’s mother; Christopher Gibbons for SK.