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The Court of Appeal (Underhill, Moylan and Macur LJJ) today handed down judgment in Secretary of State for Work and Pensions v Akhtar [2021] EWCA Civ 1353, allowing the appeal of the Secretary of State. The appeal raised complex questions around whether the respondent, a party to a polygamous marriage celebrated in Pakistan, could be entitled to bereavement benefits on the basis of her being a “spouse” in circumstances where the marriage was, as a matter of English law, void and of no legal effect. The Court of Appeal, in a judgment extending over some 255 paragraphs, gave detailed guidance on the interplay between the law governing recognition of polygamous marriages, bereavement benefits and the ECHR. The effect of s.11(b) and (d) of the Matrimonial Causes Act 1973 (“the 1973 Act”) is that, where a person domiciled in England seeks to enter into a marriage that is bigamous and/or actually polygamous, that marriage is void ab initio. Not all polygamous marriages are void; for example, those validly celebrated under a law that permits polygamy where neither party is domiciled in England can, applying conflict of law rules, be recognised as valid in English law. In 2008, the respondent entered into a marriage ceremony with Mr A in Pakistan. Mr A had married his first wife in 1976 in Pakistan; he then moved to the UK with his first wife. In 2001 (by which time Mr A was domiciled in the UK), Mr A pronounced a talaq of the marriage with his first wife. A talaq is a unilateral repudiation of a marriage contract that is recognised as effective under Islamic law. The talaq was not, however, effective under English law and so Mr A remained (for English law purposes) married to his first wife. Thus, the consequence of the timeline of events, the fact that Mr A was domiciled in England in 2008 and effect of the provisions of the 1973 Act was that the ‘marriage’ between Mr A and the respondent in Pakistan in 2008, being polygamous and bigamous, was under English law a void marriage. The central issue in the appeal was whether, on the death of Mr A, the respondent could nevertheless claim Bereavement Payment (“BP”) and Widowed Parent’s Allowance (“WPA”) under ss.36 and 39A (respectively) of the Social Security Contributions and Benefits Act 1992 (both benefits have since been superseded by bereavement support payment under the Pensions Act 2014). BP and WPA are only payable to a person whose “spouse” (or civil partner) has died. The Secretary of State refused the respondent’s application for benefits on the basis that she and Mr A were not validly married for the purposes of English law and that she accordingly was not a “spouse” for the purposes of the legislation. The respondent’s appeal to the First-tier Tribunal was unsuccessful; on further appeal to the Upper Tribunal, however, the Upper Tribunal judge allowed her appeal and found that she was entitled to both BP and WPA. In assessing the respondent’s eligibility, the Upper Tribunal judge was required to consider the effect of the Social Security and Family Allowances (Polygamous Marriages) Regulations 1975 (“the 1975 Regulations”). The 1975 Regulations contain deeming provisions which provide when a polygamous marriage is to be treated as having the same consequences as a monogamous one. The Upper Tribunal Judge, proceeding on the basis that the 1975 Regulations excluded void marriages, held that their effect was discriminatory pursuant to Article 14 read with Article 1 of Protocol 1 to the ECHR, and proceeded to ‘read down’ the 1975 Regulations under s.3 of the Human Rights Act 1998 so that they applied to the respondent’s position. On that basis, the Upper Tribunal judge concluded that the respondent was entitled to both BP and WPA. The Secretary of State appealed against the Upper Tribunal judge’s decision (the Upper Tribunal’s conclusion on an alternative basis that the respondent was eligible for WPA only applying the Supreme Court’s decision in In re McLaughlin [2018] 1 WLR 4250 was not challenged). The Court of Appeal unanimously allowed the Secretary of State’s appeal. The Court accepted the Secretary of State’s primary submission, that the 1975 Regulations apply only to valid rather than void polygamous marriages, and that their object was to ensure that valid polygamous marriages that were only potentially polygamous, being those marriages celebrated under a law that permitted polygamy but where there was only one husband and wife, were treated analogously to monogamous marriages. The Court of Appeal further overturned the Upper Tribunal judge’s conclusion that any interference with the respondent’s rights were disproportionate, finding that it was proportionate to draw a distinction between cases where parties were and were not validly married as a matter of domestic law. Admas Habteslasie appeared for the Secretary of State.
