Home > Family > England and Wales > 2009-10-22 - Chief Adjudication Officer v. Kirpal Kaur Bath, [2000] 1 (...)

2009-10-22 - Chief Adjudication Officer v. Kirpal Kaur Bath, [2000] 1 F.L.R. 8; [2000] 1 F.C.R. 419

Family · England and Wales · Religious marriage

The religious marriage of a couple of Sikh meets the condition of the presumption of marriage of the Marriage Act 1949

Key facts of the case - B, a widow aged 59, went through a Sikh marriage in 1956 aged 16 with her husband, then aged 19, at a British Sikh temple in which a marriage ceremony was performed in accordance with Sikh rites. They cohabited as husband and wife for 37 years and B’s husband paid income tax and social security contributions as a married man until he died in 1994. B then applied for widow’s benefit. This was initially refused by an adjudication officer and that decision to refuse was upheld on appeal to the Social Security Appeal Tribunal. B’s further appeal to the Social Security Appeal Commissioner was successful. The Chief Adjudicating Officer appealed against that decision on the basis that the temple at which the ceremony took place had not been registered at that time and, therefore, it could not be presumed that a valid marriage existed in accordance with the Marriage Act 1949.

Main reasoning of the court - The Chief Adjudication Officer’s appeal was dismissed on the following grounds.
A presumption of marriage arose from the couple’s long period of cohabitation and there was an absence of clear and compelling evidence to rebut that presumption.
The Marriage Act 1949 s.49 rendered a marriage void if the parties to it "knowingly and willfully" failed to comply with the relevant statutory provisions. That could not be inferred in the instant case, in which both parties had come to England at a young age, were unfamiliar with the English language and custom, and had entered in good faith into the marriage. Notwithstanding that there had been no notice or declaration of marriage, no entry in the notice book, no certificate and no authorised celebrant, the ceremony had taken place at a place of worship which was eligible to be registered but which for some reason had not been.

Comment - In terms of factual background this case illustrates the situation of some of the earlier generation of post-war migrants who knew little of the marriage laws of England when they came and married on the advice of community members. Having failed to marry in a manner recognised by the official law, they nevertheless acted as a married couple and were treated as such by various state authorities. The case clearly posed a moral dilemma Court of Appeal. Holding that there was a ‘non-marriage’ or that the marriage was ‘void’ (two distinct concepts in English law) would have meant denying the widow the benefit for which her husband had ostensibly contributed through his long working life. The Court thereby found assistance in the principle of ‘presumption of marriage’, which it borrowed from Scottish law (and which has since been abolished by the Family Law (Scotland) Act 2006, section 3). It has not been easy for applicants since this case to have the principle applied in their cases: see e.g. Al–Saedy v Musawi [2010] EWHC 3293 (Fam) and it seems likely to be applied in a restrictive and exceptional manner.

See the decision: 2009-10-22, Chief Adjudication Officer v. Kirpal Kaur Bath.