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

English Court of Attractiveness rules polygamous second spouse of deceased Pakistani person not entitled to bereavement advantages



England and Wales Court of Appeal
England and Wales Courtroom of Appeal

The English Courtroom of Attractiveness has allowed an charm by the Secretary of Condition for Work and Pensions towards a determination that a widow of a formerly polygamous marriage was entitled to Bereavement Payment and Widowed Parent’s Allowance.

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Nasim Akhtar, the respondent, had married her partner, A, in Pakistan in 2008 at a time when he was presently married. The Higher Tribunal had earlier dominated that the result of the Social Security and Household Allowances (Polygamous Marriages) Rules 1975 allowed the respondent to assert both equally gains.

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The attraction was listened to by the Vice-President of the Court docket of Attractiveness, Lord Justice Underhill, sitting with Woman Justice Macur and Lord Justice Moylan. All 3 justices gave opinions in the circumstance.

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Domiciled in England

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The ceremony in Pakistan at which the respondent married her spouse was a valid polygamous relationship beneath Pakistani regulation, but as A was domiciled in England at the time it was void less than English law. In 2009, A divorced his first wife in England so that his relationship to the respondent became monogamous and remained so until finally his demise in 2016. The couple had 1 daughter, who was born in 2012.

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It was to begin with regarded by the DWP that the respondent was entitled to both BP and WPA, but a revised choice issued in October 2016 refused her assert on the foundation that she and A had been not validly married and as a result she was not a “spouse” underneath the related legislation. She appealed the final decision to the Very first-tier Tribunal, which dismissed her charm on the foundation that her marriage was invalid beneath English regulation.

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In proceedings before the Upper Tribunal, it was argued that the 1975 Regulations ought to apply to the respondent even however her marriage was not valid in England as to do normally would be discriminatory and a breach of her human rights. It was determined by the UT that the Regulations could be read through down as to comply with the ECHR, and that as the sole surviving widow of an abroad religious relationship the respondent was in an analogous placement to that of a “lawful” widow below a relationship recognised by the legislation of England and Wales.

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It was submitted for the appellant that events to a relationship void under English regulation were being not in an analogous situation to a lawfully married pair. The UT experienced erred in figuring out that the 1975 Polices could be applied to polygamous marriages invalid less than English legislation and it was not discriminatory to read through the Regulations in this way. More, the respondent could not be regarded as a “spouse” for the purposes of the Restrictions thanks to English law not recognising her marriage.

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General public coverage

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In his impression, with which the other two justices broadly concurred, Lord Justice Moylan commenced: “Having put in for a longer time than I must have accomplished given that the listening to analysing how a void relationship could arrive within just the legislative scheme, I have come to the very clear summary that the 1975 Laws only make perception if they do not utilize to marriages which are void underneath English legislation.”

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He spelled out his reasoning as follows: “In my view, the term ‘spouse’ are not able to suggest a occasion to a relationship which is void underneath English law, for the uncomplicated motive that a party to a void marriage is not a partner. There would have to be some specific, or quite possibly implied, provision which helps make it apparent that the traditional construction does not apply. There is absolutely nothing in the most important laws which would assist this conclusion. In certain, there is nothing to recommend that the introduction of the expression wife or husband (in location of widow) was meant to include a occasion to a void relationship.”

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He concluded on this matter: “Because a polygamous relationship will only be in simple fact monogamous ‘when neither bash to it has any partner additional to the other’, I can see no way spherical [counsel for the appellant’s] submission that this provision only operates if NA is a partner. Normally, as she submitted, these text make no perception.”

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Addressing regardless of whether this constituted discrimination below the ECHR, Lord Justice Moylan reported: “NA’s posture as a party to a spiritual relationship which is void in English regulation is not analogous to a get together to legitimate marriage. A religious ceremony of relationship performed in England and Wales may possibly build a legitimate relationship, a voidable marriage, a void marriage or it could possibly be a non-qualifying ceremony.”

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He ongoing: “A get together to a spiritual marriage executed in another state which is void due to the fact it is bigamous is in an analogous placement to a occasion to a religious relationship performed in England which is void for the reason that it is bigamous. It is the bigamous nature of the relationship which is the related and critical aspect not that the relationship was polygamous nor that the marriage was a religious ceremony.”

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Lord Justice Moylan concluded: “There are strong public coverage explanations which guidance differentiating concerning void and legitimate marriages including in between valid polygamous marriages and polygamous marriages which are void simply because, beneath English legislation, they are bigamous. I do not take into consideration that there is any foundation on which the ground on which the latter are void could be effectively challenged.”

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The attraction was therefore authorized and the UT’s selection established side.

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