Court of Appeal, Underhill VP, Macur and Moylan LJJ,  EWCA Civ 1353, 10 September 2021
The Court of Appeal allowed an appeal against the decision of the Upper Tribunal that the exclusion from entitlement to Bereavement Payment (“BP”) under ss 36 of the Social Security Contributions and Benefits Act 1992 of those whose marriages were recognised for religious purposes, and not in English law, breached Article 14 read with A1P1. There was some disagreement between the Court of Appeal judges as to the law relating to polygamy but all were agreed that the claimant was not analogously situated to someone whose religious marriage (conducted abroad) was so recognised, further that the discrimination was justified in any event, the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions having little impact in this case.
The claimant had married her husband, since deceased, in a religious ceremony in Pakistan which was recognised as creating a legal polygamous marriage in that country which marriage was, because polygamous and involving someone (the claimant’s husband) domiciled at the time in England, void under English law. Her husband subsequently divorced his first wife in England in 2009 so that his marriage to the claimant became monogamous and remained so until his death in 2016.
The Upper Tribunal accepted that the claimant was analogously situated with a “lawful” widow and that she was “the victim of unlawful discrimination on the same basis as the applicant in In re McLaughlin”  UKSC 48,  NI 66,  1 WLR 4250. There the Supreme Court had ruled that the equivalent legislation in Northern Ireland in respect of WPA was incompatible with Article 14, read with Article 8, “in so far as it precludes any entitlement to widowed parent’s allowance by a surviving unmarried partner of the deceased” (per Lady Hale at §45). According to the Court of Appeal, per Moylan LJ with whom Underhill VP and Macur LJ agreed on the human rights aspects of the claim, at §8: the Upper Tribunal Judge “expressed concern, at , at ‘the apparently glacial pace of the Secretary of State’s consideration’ of the decision in McLaughlin. He also referred to the House of Commons Work and Pensions Select Committee in April 2019 describing the “profound injustice” of the bereavement benefits system”. Not until July 2021 was the draft Bereavement Benefits (Remedial) Order 2021 laid before Parliament.
Having conducted an extensive review of the law relating to polygamous marriages Moylan LJ turned to consider the discrimination claim. At §140 he adopted the standard four question framework, there relying on Lady Hale in McLaughlin §15. He acknowledged that the second question was not to be given undue emphasis and that (per Lady Hale in McLaughlin §24, citing Lord Nicholls in R (Carson) v Secretary of State for Work and Pensions  UKHL 37,  1 AC 173 §3 who in turn cited AL (Serbia) v Secretary of State for the Home Department  UKHL 42,  1WLR 1434 to the effect that “there are few Strasbourg cases which have been decided on the basis that the situations are not analogous, rather than on the basis that the difference was justifiable. Often the two cannot be disentangled.” Lady Hale had gone on to discuss at §25 a number of cases in which the ECtHR had “had stated that ‘marriage conferred a special status’ and that unmarried cohabitees were not in an analogous situation to a married couple” (citing Lindsay v United Kingdom (1986) 9 EHRR CD 555; Shackell v United Kingdom (Dec) (App no 45851/99), 27 April 2000; and Burden v United Kingdom (Application no. 13378/05) (2008) 47 EHRR 38).
Moylan LJ referred to Yiðit v Turkey (Application no. 3976/05) (2011) 53 EHRR 25, in which the Grand Chamber had rejected an Article 14 challenge to the refusal of the Turkish state to recognise religious marriages without benefit of a civil ceremony on the basis that the difference in treatment pursued Turkey’s principle of secularism and “aimed to put an end to a marriage tradition which places women at a disadvantage” (polygamous marriage). He stated at §151 that the “manifestly without reasonable foundation test” had been superseded by the decision of the Supreme Court in R (SC) v Secretary of State for Work and Pensions  UKSC 26,  3 WLR 428 (see associated blog). He also referred to the decision in McLaughlin in which Lady Hale had at §27 endorsed the approach of the trial judge below to BP (which decision had not been appealed). Treacy J (as he then was) had rejected the challenge to the lawfulness of BP on the basis that, whereas WPA was concerned with the position of children, married and unmarried couples were not in an analogous position as regards BP because the latter had not “put the state ‘on notice’ of their relationship” by making a “public contract”. Lord Mance had similarly stated at §52 that a “policy in favour of marriage or civil partnership may constitute justification for differential treatment, when children are not involved”.
Moylan LJ went on to consider a number of cases in which the domestic courts had addressed the “distinct status of marriage”, among them Akhter v Khan (Attorney General and others intervening)  EWCA Civ 122,  2 WLR 1183 in which the Court of Appeal found that an Islamic marriage ceremony performed in London had no legal effect and AR v Secretary of State for Work and Pensions  UKUT 165 (AAC) in which (§157) a three-judge panel of the Administrative Appeals Chamber including Farbey J) had considered whether the term “spouse” could be read pursuant to s3 HRA to include a woman who had “entered into a religious marriage ceremony (Nikah) in accordance with Islamic principles” in England”.
- The argument was rejected, at , because “the grain of section 39A is that benefits should only be paid to a spouse married under English law”. The UT, at , identified “three main reasons for understanding the grain in this way: the genesis of these provisions; the legal and policy considerations relating to marriage; and the legislator’s intention as to conditions applicable to receipt of the benefit”.
- As to the first, at , benefit provision for widows had commenced in 1925 and the UT had “not been taken to any material suggesting that, when the legislation referred to a ‘widow’, it meant anyone other than a woman who had been in a lawful marriage terminated by the death of her husband”…
- As to the second, the UT referred to Akhter v Khan, noting that it “emphasises the state’s interest in knowing who is, and who is not, married” and concluded, at , that: “In our view, legal policy in relation to the value of marriage complying with legislative formalities is reflected in the draftsman’s decision to use the word “spouse” in section 39A to provide one of the gateway conditions to receipt of the benefit. It forms part of the grain of the legislation”.
- As to the third, the UT referred, at , to provisions in the legislation “as to when the benefit will not be, or will cease to be, payable”. Section 36(2) and section 39A(5):
“each refer to a person who is (ex hypothesi) married to the deceased but at the time of the deceased’s death is ‘living together as a married couple’ with someone else. There is a clear distinction made by the legislator between the formal status of being married and the position of ‘living together as a married couple’. Mr Amos’s proposed reading of ‘spouse’ in section 39A is in our view incompatible with this distinction”.
This was followed, at , by reference to section 39A(4):
“which provides that ‘the surviving spouse shall not be entitled to the allowance for any period after she or he remarries or forms a civil partnership’. Entitlement is lost when these formal steps are taken. It is far from obvious that Parliament would have intended different levels of formality as regards marital status to have applied to accessing the benefit under section 39A(1) and to losing it under section 39A(4).”
Having decided that the legislation did not, absent Convention-compliant interpretation, assist the claimant, Moylan LJ went on to consider whether it breached her Convention rights. At §218 he observed that “As the provisions in respect of WPA have already been found to breach article 14 it is only necessary to consider this issue in respect of BP. It having been agreed by the parties that the claim fell within A1P1 the first question was whether she was in an analogous position as regards BP to those who had been legally married. At §220 Moylan LJ cited Lady Hale’s statement in McLaughlin §26 that this “has to be addressed ‘in the context of the measure in question and its purpose’”, stating that the purpose of BP was “providing financial assistance following the death of a husband, wife or civil partner”. At §221 he rejected the argument put for the claimant that there was “a ‘spectrum’ of relationships in this context”, ruling that there was “‘an obvious and relevant difference’ … between those who have contracted a marriage which is valid under English law and those who have not. Marriages can be void for a number of reasons and I do not see how the position can vary or depend on the reason for the marriage being void. The focus in McLaughlin was on the ‘public contract’ because the court was analysing the difference between a married couple and a couple who had not entered into ‘the act of marriage’. In all cases involving void marriages, the parties will inevitably have undertaken some act or ceremony. This will very probably be a public act or ceremony but the critical distinction is that it will not be an effective ‘public contract’”.
Moylan LJ concluded that the claimant was not in an analogous position to lawful widows for the purpose of her BP claim (§222):
- … 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. Taking the facts of the present case, in my view 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.
- Accordingly, contrary to the UTJ’s decision, I do not consider that NA is in an analogous position to a party to a marriage which is valid, or not void, under English law. It is, in my view, a clear distinction of the nature identified by Lord Nicholls in R (Carson) v SSWP [ UKHL 37,  1 AC 173], namely ‘an obvious, relevant difference’.”
Moylan LJ went on nevertheless to consider justification, concluding at §235 that “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”. In reaching that conclusion he suggested that the change of approach of the Supreme Court in SC had little impact on the question in view of Lord Reed’s statement at §159 (cited at §227) that “the courts should generally be very slow to intervene in areas of social and economic policy such as housing and social security” and that “This is not a case in which there are factors which would require a higher degree of justification. Or, to put it the other way, this is a case in which, adopting what Lord Reed said, at , ‘the ordinary approach to proportionality will accord the same margin to the decision-maker as the ‘manifestly without reasonable foundation’ formulation’ because the circumstances are such that a particularly wide margin is appropriate. I would also add that, even if a smaller margin was appropriate, I have no doubt, for the reasons set out below, that the difference of treatment is justified”.
Moylan LJ also made reference to Lady Hale’s acceptance in McLaughlin, at §25 that “marriage has been recognised by the ECtHR as conferring a ‘special status’” and her statement at §36 that “the promotion of marriage, and now civil partnership, is a legitimate aim”. The legislation provided a “clear legal line in that it makes clear when a marriage will be void”, though evidential difficulties were common: “Such potential difficulties, in my view, do not diminish the effect of the bright line relied on for the purposes of the present case, namely the bright line between those marriages which are void and those which are not”.
At §236 Moylan LJ accepted that there were “powerful public policy reasons for prohibiting marriages which are actually polygamous (i.e. bigamous)” and that “maintaining a legal structure which discourages bigamous marriages and makes bigamous marriages void for those domiciled in England and Wales cannot be said to be without reasonable foundation, let alone manifestly without reasonable foundation. Indeed, as set out above, I consider that the structure and effect of the legislation is clearly justified”.
Claimant: Zoe Leventhal, Jack Anderson and Admas Habteslasie, instructed by The Government Legal Department
Respondent: Celia Rooney, instructed by Bhatt Murphy Solicitors