English Court of Appeal rules polygamous second wife of deceased Pakistani man not entitled to bereavement benefits

The English Court of Appeal has allowed an appeal by the Secretary of State for Work and Pensions against a decision that a widow of a formerly polygamous marriage was entitled to Bereavement Payment and Widowed Parent’s Allowance.

Nasim Akhtar, the respondent, had married her husband, A, in Pakistan in 2008 at a time when he was already married. The Upper Tribunal had previously ruled that the effect of the Social Security and Family Allowances (Polygamous Marriages) Regulations 1975 allowed the respondent to claim both benefits.

The appeal was heard by the Vice-President of the Court of Appeal, Lord Justice Underhill, sitting with Lady Justice Macur and Lord Justice Moylan. All three justices gave opinions in the case.

Domiciled in England

The ceremony in Pakistan at which the respondent married her husband was a valid polygamous marriage under Pakistani law, but as A was domiciled in England at the time it was void under English law. In 2009, A divorced his first wife in England so that his marriage to the respondent became monogamous and remained so until his death in 2016. The couple had one daughter, who was born in 2012.

It was initially considered by the DWP that the respondent was entitled to both BP and WPA, but a revised decision issued in October 2016 refused her claim on the basis that she and A were not validly married and therefore she was not a “spouse” under the relevant legislation. She appealed the decision to the First-tier Tribunal, which dismissed her appeal on the basis that her marriage was invalid under English law.

In proceedings before the Upper Tribunal, it was argued that the 1975 Regulations should apply to the respondent even though her marriage was not valid in England as to do otherwise would be discriminatory and a breach of her human rights. It was determined by the UT that the Regulations could be read down as to comply with the ECHR, and that as the sole surviving widow of an overseas religious marriage the respondent was in an analogous position to that of a “lawful” widow under a marriage recognised by the law of England and Wales.

It was submitted for the appellant that parties to a marriage void under English law were not in an analogous situation to a lawfully married couple. The UT had erred in determining that the 1975 Regulations could be applied to polygamous marriages invalid under English law and it was not discriminatory to read the Regulations in this way. Further, the respondent could not be regarded as a “spouse” for the purposes of the Regulations due to English law not recognising her marriage.

Public policy

In his opinion, with which the other two justices broadly concurred, Lord Justice Moylan began: “Having spent longer than I should have done since the hearing analysing how a void marriage could come within the legislative scheme, I have come to the clear conclusion that the 1975 Regulations only make sense if they do not apply to marriages which are void under English law.”

He explained his reasoning as follows: “In my view, the word ‘spouse’ cannot mean a party to a marriage which is void under English law, for the simple reason that a party to a void marriage is not a spouse. There would have to be some express, or possibly implied, provision which makes it clear that the conventional construction does not apply. There is nothing in the primary legislation which would support this conclusion. In particular, there is nothing to suggest that the introduction of the term spouse (in place of widow) was intended to include a party to a void marriage.”

He concluded on this matter: “Because a polygamous marriage will only be in fact monogamous ‘when neither party to it has any spouse additional to the other’, I can see no way round [counsel for the appellant’s] submission that this provision only works if NA is a spouse. Otherwise, as she submitted, these words make no sense.”

Addressing whether this constituted discrimination under the ECHR, Lord Justice Moylan said: “NA’s position as a party to a religious marriage which is void in English law is not analogous to a party to valid marriage. A religious ceremony of marriage performed in England and Wales might create a valid marriage, a voidable marriage, a void marriage or it might be a non-qualifying ceremony.”

He continued: “A party to a religious marriage performed in another country which is void because it is bigamous is in an analogous position to a party to a religious marriage performed in England which is void because it is bigamous. It is the bigamous nature of the marriage which is the relevant and important feature not that the marriage was polygamous nor that the marriage was a religious ceremony.”

Lord Justice Moylan concluded: “There are powerful public policy reasons which support differentiating between void and valid marriages including between valid polygamous marriages and polygamous marriages which are void because, under English law, they are bigamous. I do not consider that there is any basis on which the ground on which the latter are void could be successfully challenged.”

The appeal was therefore allowed and the UT’s decision set side.

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