(Erkenning van) huwelijken uit Somaliland

Een Nederlander trouwt in Somaliland met een dame van daar en samen verhuizen ze naar Engeland waar meneer in een ziekenhuis werkt. Er reizen daar problemen met de erkenning van hun huwelijk omdat Somaliland geen officieel land is.

Ons internationaal privaatrecht is eigenlijk gewoon intern Nederlands recht en staat in boek 10 BW. En daar kunnen duidelijk verschillen zijn met de Engelse leer. Hier bij ons telt "Is het daar een erkent huwelijk dan is het hier ook", maar omdat deze uitspraak ook veel vertelt over de praktijk in Somaliland en hoe om te gaan met papieren van niet erkende staten heb ik deze hier toch opgenomen.

1. This is an application for a declaration in relation to the marital status of the parties pursuant to section 55 of the Family Law Act 1986. The families of both MM and NA are of Somali origin. MM is a Dutch national who was born in Holland and has lived in the United Kingdom since 2001. He works at a local hospital. NA was born and raised in Somaliland and was living there prior to her marriage. The couple met in Somaliland in 2012 when MM was visiting and, after a period of courtship, they agreed to marry. On 7 March 2013 MM and NA attended a religious ceremony of marriage in Hargeisa. Later that day they held what they have referred to as a "marriage wedding" which was attended by many family and friends. Some ten days later they attended the local district court in Hargeisa where their marriage was validated and a formal marriage certificate issued. They have lived together as husband and wife ever since and, on 20 January 2016, NA gave birth to their daughter who is now 4 years old.


2. Theirs is a very happy and settled relationship. They regard themselves as husband and wife. However, as a result of the need to complete various forms, an issue arose as to whether their marriage was entitled to formal recognition in this jurisdiction. Whilst they were both happy to undergo a further civil ceremony of marriage in a local register office, this option was not open to them as the registrar took the view that they may already be married to one another^[1]. Thus it was that they applied to the court for a formal declaration as to whether or not their marriage was at its inception a valid marriage which subsisted as at the date of their application. Whilst NA is the respondent to these proceedings, there is no issue between these parties. They simply wish to secure declaratory relief for the purposes of clarifying their marital status in this jurisdiction where they have settled and made their family home. Because the case raises issues which may be relevant to the wider Somali diaspora living in England & Wales, this judgment will be published on an open (albeit anonymised) basis.

(...)

1. here are various defects which may make a marriage invalid: see Clarkson & Hill's Conflict of Laws, 5^th edition. The question may often be whether the parties complied with the proper formalities for the celebration of the marriage, or whether each was able to marry because of age or a close family connection to one another. The rules about whether or not a marriage is valid fall to be considered in two different ways. There are rules which concern formal validity and others which concern essential validity, or a party's personal capacity to marry. The former concern the manner in which a ceremony of marriage is undertaken (for example, ensuring the marriage itself is public and proof that it has taken place in accordance with local requirements). The latter relates to whether or not the marriage can take place at all between the two individuals concerned. Under English law formal validity is regulated by the domestic law of the country where the marriage is celebrated. This is often referred to as lex loci celebrationis. Essential validity, or capacity, has to be considered in the light of the domiciliary laws of the individual parties at the time of the marriage: see Rule 73 of The Conflicts of Laws, Dicey, Morris & Collins (15^th edition) (Dicey).


2. In order to answer the first question, I have to consider the evidence of the parties themselves together with that of the single joint expert instructed in this matter by the Attorney General.


3. Each of MM and NA have provided written statements in relation to the circumstances surrounding their marriage. MM's family travelled to Hargeisa in Somaliland some three weeks before the wedding. The religious marriage ceremony was performed on 7 March 2013 followed by a "marriage wedding" on the same night attended and witnessed by his mother and sister (both nationals of the Netherlands), close family and friends. The marriage was governed by Islamic law and the formalities were undertaken by a local religious leader who had given public notice of his intention to conduct the marriage some four days earlier. Ten days later, on 17 March 2013, the parties attended at the local district court in Hargeisa to validate or "legalise" the marriage in order to obtain a formal marriage certificate. They were asked to bring with them two witnesses who had to be citizens of Somaliland. Two of NA's cousins were chosen to fulfil this role. Having formally sworn on the Quran that the marriage had taken place and was valid in terms of local requirements, the parties were issued with a formal marriage certificate, a copy of which has been filed with the court and sent to the single joint expert, Mr Jama. It is a formal document which bears the seal of the Hargeisa District Court which records the details of the parties, their witnesses and the fact that the law regulating the marriage is Sharia law. It has been signed by a judge who is identified on the face of the certificate. It is accompanied by a declaration of authenticity and formal registration from the Director General of the Ministry of Justice and Judicial Affairs, counter-signed by the Director General of the Ministry of Foreign Affairs & International Cooperation. On 3 March 2015 the Imam who performed the marriage ceremony on 7 March 2013 attested before a public notary that he was the individual celebrant who had married this couple.

The expert evidence and evidence from the Foreign & Commonwealth Office

4. Mr Guleid Jama of Xaqdoon Law Firm based in Hargeisa has provided the court with a report. Mr Jama has an array of impressive legal credentials. I am entirely satisfied that he is qualified to assist the court in relation to these matters in his capacity as an expert witness. As he explains, Somaliland was a British Protectorate before it gained independence on 26 June 1960. It swiftly entered into a union with the Italian colony of Somalia which achieved independence the following month in 1960. The central government of Somalia collapsed in 1991 after a protracted civil war. In that same year, Somaliland declared the restoration of independence from Somalia. As yet, it has not been recognised by the United Kingdom as a State and the UK government has not entered into any formal treaties with Somaliland or the government of Somaliland.


5. I have also been provided with a witness statement from St John Gould who is employed by the Foreign & Commonwealth Office as Head of its East Africa Department, a post he has held since April 2019. As such he has responsibility for policy issues relating to Somaliland. Despite the absence of formal recognition as a State in its own right, Mr Gould has confirmed that the United Kingdom has regular political contact with the government of Somaliland and has entered into signed memoranda of understanding with it. As a result, the United Kingdom government has channels of engagement with the Somaliland judicial system in matters such as technical assistance and counter-terrorism. Mr Gould concludes his written evidence in this way:



"5. Accordingly, whilst this is a question of judgement, I do not consider the recognition of certain private rights, such as the recognition of a Somaliland marriage, to imply greater political engagement with Somaliland than already takes place. Nor is it likely that the Foreign & Commonwealth Office would object to the recognition of a Somaliland marriage in a UK civil law case on the basis that the United Kingdom does not recognise Somaliland as a State."

6. It was on this basis that the Foreign & Commonwealth Office confirmed in writing to the court through one of its senior lawyers that it did not wish to intervene formally in these proceedings.


7. Returning to the expert evidence of Mr Jama, he has confirmed that:



"6. After the declaration of independence, Somaliland established a formal judiciary system consisting of district courts, regional courts, appeal courts and Supreme Court. In 2001, a constitution was approved by the public in a referendum. Article 130(5) of the Constitution allows the application of laws that predate the declaration of Somaliland as long as these laws do not infringe fundamental freedoms and human rights and Sharia Law. Since the approval of the constitution, many laws were enacted by the Somaliland Parliament. But many more, including the Somali Civil Code and the Somali Penal Code, are still applicable in Somaliland.






7. There are three systems that are used in Somaliland. These are the customary law, the formal law and the Sharia law. The customary law is a centuries-old system. In the emergence of a dispute, respected elders are assigned to hear the case. The decision of the elders becomes the law of the parties similar to the precedence in the common law system. If the same facts emerge between the same parties or members of the communities of the two parties involved in the earlier decisions, the latter judgment agrees with the previous verdict. It is such precedence [through which] the Somali customary law grows. Customary law is not written. It is oral and kept in the memory of the community members.

8. Sharia is the Islamic law and its sources are the Quran (the Muslim holy book), the Sunna (the narrations of prophet Mohamed), consensus and analogy among others. The order and importance of sources are a controversial matter in the different schools of thought in Sunni Islam. But the Quran and the Sunna are seen as primary sources. Sunna is narrations (Hadith) recounted from the Prophet by his companions. Hadith remained unwritten in the early stages of Islam. It also includes actions made by the Prophet as narrated by his companions."

8. Mr Jama goes on to explain that Somaliland does not have a separate body of family law. In personal matters such as marriage, divorce and inheritance, Sharia law is used to determine disputes. In accordance with the Judiciary Organization Act (No 24/2003), the local district courts exercise jurisdiction in relation to matters of personal law. District and regional courts are courts of first instance, and appeal lies to the regional appeal court located in the area where the lower court of first instance is situated. Because of the absence of any recognised family law system, the requirements in relation to the formation of marriage are based on the religious beliefs of the two parties to a marriage. Under Islamic (Sharia) law, marriage is a contractual agreement which makes the status of marriage binding on both contracting parties. Most marriages in Somaliland are administered by religious leaders who conduct the marriage ceremony in the presence of family members, friends and clan elders. The formalities can also be administered by a judge and it is not uncommon for the wedding celebration to take place after the marriage has been concluded. There are formalities which must be complied with before a marriage will be considered binding. Both parties must consent; there must be at least two witnesses; and consent must be obtained from the custodian ('wali') of the bride.


9. The marriage itself, according to Mr Jama's evidence, achieves full legal validity on the date of the marriage contract regardless of whether or not there is in existence a formal certificate issued by a court. That certificate, where it has been obtained by the parties, is simply formal evidence of the validity of the marriage. In the case of a marriage administered by a religious leader, as in this case, it can be registered formally with the local district court by submitting an application. The certificate will be signed by a judge and an English copy can be provided by the Ministry of Justice.


10. Having reviewed all the documents supplied to him, Mr Jama has confirmed that the certificate of marriage issued by the Hargeisa District Court is proof of a valid marriage celebrated on 7 March 2013 and one which is recognised as such under Somaliland law.


11. On the basis of this evidence, I have no difficulty in finding that the applicant and the respondent are indeed validly married according to the law of Somaliland. That finding answers the first question and thus I turn now to the second question.

2. First, there is no question in this case of the UK Government having specifically reserved to itself the right to determine what legal or executive acts can or cannot be undertaken by the legal and executive authorities in Somaliland. It has simply withheld formal recognition as an independent State to this self-declared territory in the Horn of Africa.


3. Secondly, there is a wealth of authority from the highest courts in this jurisdiction confirming the existence of an exception to the non-recognition principle in the case of private and family rights. Over fifty years ago, Lord Wilberforce and Lord Reid confirmed its existence as an exception to the general rule in the Carl Zeiss case. Just over ten years later, Lord Denning considered that marriages and divorces fell within the exception in the Hesperides Hotels case. A decade later, Lord Donaldson said that he saw "great force" in the exception in Gur Corporation. Some ten years later the Special Commissioners confirmed that the exception could apply in cases involving matters of private law including the registration of births, marriages and death. In the field of English family law, Sumner J confirmed that recognition could be afforded to a foreign decree of divorce pronounced in an unrecognised State. There has been no subsequent challenge to that decision nor any obiter statement in a subsequent case which suggests that his Lordship's view was wrong and/or that he was not entitled to grant the declaratory relief which flowed from his decision in Emin. The only historical challenge came some thirty years earlier in the Adams case. Perhaps it is not without significance that Adams was decided in the same year that the International Court of Justice in the Hague, the principal judicial organ of the United Nations of which the United Kingdom is a member, handed down its decision in the Namibia case which gave its name to the Namibia exception.


4. Thirdly, I am satisfied that marriage and its creation as a legal status falls within the category of 'private rights' which the exception has embraced in the authorities to which I have referred above. Regardless of the fact that Mr Jama in his evidence has described the formalities required under Sharia law as a contractual agreement and the certificate issued by the Hargeisa District Court as valid proof from the administrative authority of an effective marriage, I take the view that these acts can properly be regarded as essentially private in character regulating, as they do, the day to day affairs of the people and individuals resident within the territory in question: see the Kibris case, above.


5. Fourthly, in my judgment a refusal to recognise the validity of this marriage would represent something of a legal anomaly. Given the development of English jurisprudence on this issue over the last fifty years, the English courts would be significantly out of step with other jurisdictions in terms of private international law were recognition of this marriage to be refused. In circumstances where I can see no good, far less compelling, reason to refuse recognition, I am quite satisfied that the applicant in this case is entitled to the declaratory relief which he seeks.


6. I have reached that conclusion having taken full account of the evidence I have received on behalf of the UK Government from the Foreign & Commonwealth Office (FCO). That is an important safety valve to the exception to the non-recognition principle. As far as issues of policy are concerned, in this case I have the reassurance of the FCO through Mr St John Gould (who has been specifically authorised to provide it), that the Government would be unlikely to object to the recognition of a Somaliland marriage on the basis that it does not recognise Somaliland as a State. Mr Gould's own judgment (informed as it is by his role as Head of the relevant Government Department) is that the recognition of private rights in this way would not be contrary to public policy by implying greater political engagement with Somaliland than that which already takes place through diplomatic channels. Thus the 'one voice' doctrine is maintained. The FCO had advance notice of how the case was going to be argued before me but has chosen not to intervene.


7. Accordingly, I propose to grant the declaration which is sought in this case: these parties, MM and NA, are validly married to one another. Their marriage was valid and subsisting as at the date of their application to this court and it is entitled to formal recognition according to the law of England & Wales.

Human Rights considerations

8. By way of postscript to my judgment, I heard submissions from Mr Nagpal in relation to whether or not it was necessary in this case to consider the implications of Human Rights legislation. Because I have decided that the considerable weight of domestic and international authority, coupled with the various citations in respect of the Namibia exception and the approval it has attracted from English appellate courts, is a sufficient foundation for granting the relief which has been sought, what follows is strictly obiter.


9. Convention rights are to be interpreted in harmony with general principles of international law. That much is clear from the decision in Neulinger v Switzerland [2012] 54 EHRR 31. However, before any breach can be established, there must first be a finding that there has been a disproportionate interference with a relevant right. Articles 8 (respect for private and family life) and 12 (the right to marry and found a family) are the likely contenders as the relevant rights which may be engaged were recognition to have been refused in this case. Member States are entitled to prescribe the formalities required for marriage in individual States: see X v Federal Republic of Germany [No 6167/73] and Hamer v United Kingdom [7114/75], [1982] 4 EHRR 139 at pars 60 to 61. Further, the ability to register a marriage falls within Article 8: see Orlandi v Italy [2018] 26431/12; 26742/12; 44057/12 and 60088/12. These cases concerned same sex couples who had married outside Italy and who found themselves unable to register those marriages in Italy. Whilst they succeeded in establishing a violation of Article 8, the critical point in the case was their inability to secure any form of legal recognition of their status in Italy.


10. I agree with Mr Nagpal that these parties would have a simple remedy were I to have refused to recognise their marriage as valid under English law. They could simply have presented themselves to a local Registrar together with the appropriate declaration of non-validity and married in a civil ceremony. In these circumstances, it is difficult to see how their Article 8 rights would have been infringed.


11. For these reasons, I need say no more in this case about Convention rights. 

Voor de hele uitspraak kijk hier: http://www.bailii.org/ew/cases/EWHC/Fam/2020/93.html
en de toelichting hier: https://www.freemovement.org.uk/somaliland-marriages-are-valid/?utm_source=rss&utm_medium=rss&utm_campaign=somaliland-marriages-are-valid&utm_source=Free+Movement&utm_campaign=3cb93d1888-RSS_EMAIL_CAMPAIGN_WEEKLY&utm_medium=email&utm_term=0_792133aa40-3cb93d1888-116334469&mc_cid=3cb93d1888&mc_eid=b72b4a153a

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