Hayatleh v Modfy: presuming the validity of a known ceremony of marriage
Child and Family Law Quarterly
Reason for embargo
Currently under an indefinite embargo pending publication by Jordan Publishing. Check embargo to be applied on publication.
The question to be determined in Hayatleh v Modfy was whether a marriage that had taken place in Syria was valid. Key to this was whether the marriage had been registered, and it was presumed that this had been done, resulting in the marriage being upheld. While none of the English cases on the presumption in favour of marriage involve registration – for the very simple reason that registration is not necessary to the validity of a marriage in this jurisdiction – their overall approach does support the application of the presumption to the registration of a marriage, as well as to its ceremonial aspects. However, while the decision was undoubtedly correct, some of the discussion surrounding the presumption in this and other recent cases raises concerns. Drawing on the case law involving the presumption in favour of marriage where the parties are known to have gone through a specific ceremony of marriage, it is shown that the point of the presumption is to assume the regularity of the ceremony that was known to have taken place, not to validate a doubtful ceremony. It is also demonstrated that where a couple have gone through a ceremony of marriage, there should be no logical necessity for them also to show that they thereafter cohabited for a substantial period of time. The suggestion in recent cases that a lengthy period of cohabitation is necessary can be traced back no further than Chief Adjudication Officer v Bath in 2000. Finally, there is nothing in the case law to support the idea that one might be 'married by estoppel'.
This is the author accepted manuscript.
Awaiting citation and DOI