Upper Tribunal (Administrative Appeals Chamber), October 22, 2014,  UKUT 495 (AAC)
|Resolution Date:||October 22, 2014|
|Issuing Organization:||Upper Tribunal (Administrative Appeals Chamber)|
|Actores:||SB v Secretary of State for Work and Pensions (BB) (Bereavement and death benefits : bereavement payments)|
SB v The Secretary of State for Work and Pensions (BB)
 UKUT 0495 (AAC)
SB v The Secretary of State for Work and Pensions (BB)
 UKUT 0495 (AAC)
IN THE UPPER TRIBUNAL Appeal No. CG/4295/2013
(ADMINISTRATIVE APPEALS CHAMBER)
BEFORE JUDGE WEST
The decision of the appeal tribunal sitting at Sheffield dated 15 August 2013 under file reference SC147/13/013 involves an error on a point of law. The appeal against that decision is allowed and the decision of the appeal tribunal is set aside.
The decision is remade. The claimant was validly married to the deceased on 7 January 1986 and is entitled to bereavement benefit on his death. The Secretary of State must now pay the full amount of the arrears of bereavement benefit due to the claimant at the earliest opportunity and make an ongoing award of bereavement benefit in accordance with the claimant's entitlement to that benefit.
This decision is made under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.
This is an appeal, with the permission of Tribunal Judge Good, against the decision of the appeal tribunal sitting at Sheffield on 18 August 2013.
I shall refer to the appellant hereafter as ``the claimant''. The respondent is the Secretary of State for Work and Pensions. I shall refer to him hereafter as ``the Secretary of State''. For ease of reference, both in the short formal decision which I gave in September and in this longer fully reasoned decision, I shall refer to her husband as ``the deceased'' and the woman who was purportedly his first wife as ``MB''. I shall refer to the tribunal which sat on 18 August 2013 as ``the appeal tribunal''.
The History of the Claim
The claimant, who was born on 1 January 1961, made a claim for bereavement benefit on 22 May 2013 following the death of the deceased on 11 March 2012. She appealed through her representative, Ms Marie Buswell of Howells Solicitors in Sheffield, against the decision dated 2 November 2012 that she was not entitled to bereavement benefit because the marriage between the deceased and the claimant on 7 January 1986 (in Sairi in the Kotli District of Azad Kashmir and which had resulted in the birth of three children) could not be accepted as valid for social security purposes and accordingly bereavement benefit was not payable to her (pages 36 to 37).
Her appeal, which was made on 28 November 2012 and received on 3 December 2012 (pages 2 to 5), came before the appeal tribunal on 18 August 2013. The decision had been reconsidered, but not revised, on 7 January 2013 (page 77). The appeal had first been scheduled for hearing on 13 May 2013, but was adjourned because the claimant's interpreter did not attend the hearing (pages 59 to 61). The claimant attended the rescheduled hearing and gave evidence through her interpreter. The appeal was dismissed. The record of proceedings appears at pages 74 to 77. The notice of decision appears at page 78. The appeal tribunal's statement of reasons appears at pages 8 to 82. In summary, the appeal tribunal held that the deceased had been validly married in Pakistan to MB on an unknown date between 6 February 1956 and 11 November 1960, that his subsequent attempt to divorce MB by talaq over the telephone was invalid and that he remained married to her, that he was consequently not free to marry the claimant and that therefore the claimant was not entitled to bereavement benefit on his death.
The claimant then sought permission to appeal from the Tribunal Judge on 24 September 2013 (pages 83 to 84), which was granted by Tribunal Judge Good on 8 October 2013 (at page 85). She also notified the Upper Tribunal of the appeal on 31 October 2013 (pages 89 to 95).
Given that permission to appeal had already been granted, Judge Thomas in the Upper Tribunal gave directions on 30 January 2014 (at page 96). He directed the Secretary of State to provide a response to the appeal within one month after the date on which the notice of the directions was sent to the parties and for the claimant to reply within one month thereafter.
On 5 March 2014 the Secretary of State provided his submissions (pages 99 to 104). He accepted that the appeal tribunal had erred in law and agreed that the decision of the appeal tribunal should be set aside. He submitted, however, that the decision should not be remitted, but remade by the Upper Tribunal on the basis that the marriage between the deceased and the claimant was void under section 11(d) of the Matrimonial Causes Act 1973. The appeal should therefore be dismissed. In reply the claimant made a submission provided by Tom Royston of Garden Court North on 11 April 2014 (pages 112 to 120). He submitted on her behalf that the appeal should be allowed on the basis that
(a) there was no adequate evidence for the appeal tribunal's conclusion that the deceased and MB were ever married
(b) the appeal tribunal gave inadequate reasons for its conclusion that the deceased and MB were ever lawfully married
(c) the appeal tribunal gave inadequate reasons for its conclusion that the marriage of the deceased and MB was (because the deceased was domiciled in Pakistan and therefore could contract a valid marriage remotely) valid for social security purposes
(d) the appeal tribunal's treatment of the question whether MB had died was procedurally unfair.
The Secretary of State did not seek an oral hearing because he said that the decision of the appeal tribunal should be remade, but that the appeal should nevertheless be dismissed. The claimant contended that the appeal should be allowed or remitted for rehearing before a new tribunal. She only requested an oral hearing if the Upper Tribunal did not agree that the appeal should be either allowed or remitted. In that event the claimant sought an oral hearing or, at the very least, an opportunity to make further written submissions as to how the decision should be remade. Given the concession subsequently made by the Secretary of State and the decision which I made on 26 September 2014 I did not consider that it was necessary to hold an oral hearing to resolve the matter.
The Directions of 14 May 2014
It seemed to me, however, that the real question at issue was whether the deceased had ever been married to MB at all. Accordingly, when the matter came before me on 14 May 2014, I made further directions that the Secretary of State should provide a response on the question of the applicable lex loci celebrationis of the marriage of the deceased to his first wife and in particular whether the formal validity of the marriage was governed by the laws of both England and Pakistan and the impact on that question of the decision of Lord Stewart in A v. K  CSOH 101, 2011 SLT 873 within one month of the date on which the notice of the directions was sent to the parties. I directed the claimant to provide a reply to the response within one month after the date on which the response was sent to her and reserved the matter to myself.
I gave the following reasons for those directions:
``1. In its original advice to the Secretary of State (which the Secretary of State adopted) the Relationship Validation Unit stated that
``[The deceased] was married twice. His first marriage was to [MB] on an unknown date between 06 February 1956 and 11 November 1960 in Pakistan.
This marriage was contracted over the telephone on an unknown date between 06 February 1956 and 11 November 1960. At the time of the marriage, [the deceased] was resident in the United Kingdom and [MB] was resident in Pakistan. The law of the UK does not allow for marriages to be contracted here by proxy or over the telephone. However, the laws of certain other countries (in this case Pakistan) can recognise such a form of marriage as valid, proved it is contracted in that country.
The formal validity of a marriage is to be determined exclusively according to the law of the place where it is celebrated; the domicile of the parties is irrelevant. It therefore follows if a telephonic marriage can be said to have been celebrated in a country which recognises such marriages, we cannot deny that the marriage is valid for our purposes.
Where marriage has been celebrated will be a question of fact in each case, but in cultures which regard marriage as consisting of an offer by the man which is accepted by the wife, the marriage will probably take place where the wife is situated.
From the available evidence [in] this case we would have to accept that [the deceased] and [MB] did enter into a contract of marriage that would have been valid under the law of Pakistan. The marriage would be recognised as valid in Pakistan and so can also be recognised as a valid marriage in the UK''.
The correctness of that exposition of the law was accepted by the claimant prior to the hearing on 15 August 2013.
However, it is arguable that the formal validity of a telephone marriage is governed by the laws of each of the two countries in which the spouses are at the time of the ceremony and that in order to be valid such a marriage must be valid under both English law and Pakistani law.
In that respect the parties are referred to Dicey, Morris and Collins: The Conflict of Laws (14th ed., London, 2006, Vol.2, para.17-013 and 15th ed., London, 2012, Vol.2, para.17-016).
The question was left open in KC v. City of Westminster (reported sub nom. Westminster City Council v. C  Fam 11, but Thorpe LJ said in the Court of Appeal:
``40. In the case of marriages contracted by a transnational telephone call the ascertaining of the place of celebration is likely to involve difficult problems of great legal significance. There are public policy issues. The French Civil Code was amended in 1993 to add a new article 146(1): ``The marriage of a French person, even where contracted in a foreign country, requires his presence.'' The reason for this was to deal...
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