The marriage that happened but was void

marriage

To a layperson the difference between a ‘marriage’ that never happened and a marriage that is subsequently declared null and void from the start may seem to be of little or no consequence. After all, in either event there was no marriage. Why, then, would two people spend some £300,000 arguing over such an issue?

The answer is that if a marriage is annulled then the parties can ask the court to make financial orders in the same way as if there had been a divorce. The value of those financial orders may, of course, significantly exceed the sum of £300,000.

Whether the financial orders that will be made in the case K v K will be worth that much we may never know. However, that was the motivation behind the petitioner seeking a decree of nullity, rather than simply accepting, as the respondent argued, that the events in the case amounted to nothing that was capable of being recognised as a marriage.

The essential facts in K v K, which was decided by Mr Justice Francis in the High Court last November, were as follows:

  1. The petitioner married a Mr. Z in Pakistan in 1972. That marriage was terminated by talaq in Pakistan in 1994, by which time the petitioner was living in England.
  2. The respondent was married to a Mrs. B, and that marriage probably lasted until her death in 2015.
  3. The parties entered into a relationship and went through a marriage ceremony at a Shia Mosque in London in 1999. The petitioner claimed that at the time she believed the respondent was divorced from his ‘first wife’. Whatever, by the time the case went before Mr Justice Francis it was common ground between the parties that this 1999 marriage was not something that is recognisable as a valid marriage between them under the laws of England and Wales.
  4. Later in 1999 the petitioner, according to her evidence, had real concerns about the status of that marriage. Worried about how she and the respondent might be perceived by family or friends in the Pakistani community if they continued to have an intimate relationship where they might not be legally married, the petitioner immediately stopped having a sexual relationship with the respondent.
  5. That relationship did not recommence until August 2003 when, according to the petitioner, the parties went through a second marriage ceremony, this time in Pakistan.
  6. The respondent denied that there had been a second marriage ceremony, claiming that the petitioner made it up, including forging the marriage deed.

As counsel for the petitioner said, one of the parties was obviously lying, and it fell to Mr Justice Francis to decide who. As set out in his judgment, he found that the respondent had lied on a number of points. For example, at an earlier hearing the court gave him the opportunity to instruct an expert to examine the marriage deed and establish whether it was a forgery, but he claimed that he did not know about this, as he had not been represented at that hearing. However, the court record clearly showed that he had been represented. He also claimed that the petitioner had not gone to Pakistan in August 2003, but her passport clearly showed that he had. He claimed that the petitioner had never visited the property in Pakistan where she claimed the marriage took place, but the petitioner produced a photograph showing her and the respondent outside that property.

And so it went on. Mr Justice Francis concluded by saying that he had “no hesitation” in preferring the evidence of the petitioner over that of the respondent. He therefore found that the 2003 marriage ceremony did take place, and that after that the petitioner honestly believed that the respondent was divorced from his first wife and that, with effect from the date of the ceremony, she was lawfully married to the respondent. Accordingly, the petitioner was entitled to a decree of nullity, on the grounds that the respondent was still married to his ‘first wife’.

You can read the full report of K v K here.

Image by sean mason via Flickr under a Creative Commons licence

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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3 comments

Alphonse - February 28, 2017 at 9:59am

[EDITOR: YOU MAY CUT THE FIRST PART.]

Sorry, but this is confusing, which is a pity as it concerns a matter of some interest….

“2. The respondent was married to a Mrs. B, and that marriage probably lasted until her death in 2015.” Coming after point #1, surely, for clarity it should better have been rendered as “The respondent was ALREADY married to…” or “The respondent had previously married…”

Also, with all the he’s and she’s, “her passport clearly showed that HE had…. was really confusing. It IS barely possible in some way, but obviously the lack of proof-reading had missed a very important “gender assignment”, as it should have read, “her passport clearly showed that she had….”

But I would suggest that the confusion (obviously not in John’s mind, because HE knows) started with, “the motivation behind the petitioner seeking a decree of nullity…” — since who (or what gender) the petitioner IS, was not made clear for another five lines. (Although, nowadays, perhaps we are expected to just ASSUME that petitioners are usually wives….)

As for #3 “The parties entered into a relationship…”, this may well be obvious to a lawyer, but coming after the statement, “that marriage probably lasted until her death in 2015” — you wonder which marriage is being referred to here.

In short, sadly, a rather confusing report. (Although there have been quite a number of instances of “lack of proof-reading” of other articles in recent times…) All of which is a pity, as they are often interesting and helpful.

And here, touch upon a raw point:

A woman can be married “overseas”, declare herself as unmarried, even produce proof that she is single (when all the certificate proves is that her foreign government has NO RECORD of any marriage — and in many less-developed countries that is very possible) — and yet, in a couple of years, when divorce comes along, her latest husband is still required to stump up, just as if she had never been married before. Although, as John says, with case law having gone the way it has, it now makes NO DIFFERENCE. Because, in the case at hand, the judge points out, “If I do grant the certificate of entitlement to a decree of nullity, the petitioner will then [still] be permitted to pursue a claim for ancillary relief and for financial remedy.”

In such a way, a street-smart already-married young woman working overseas for instance, having discovered that she can “play” the system, cynically begins a cycle of marriage and divorce, zig-zagging her way to fortune, if not fame.

Improbable? I think not.

Anyway John, thanks for an interesting report. And I know I may well be leaving myself open to criticism, since, sadly (in my view) the law HAS changed since Whiston v Whiston (1995), where “a knowing bigamist should be barred from seeking ancillary relief because to do so would be to rely on [her] own serious criminal act.”

Personally, I view the change with great dismay as it only encourages “the institution of marriage” to be taken lightly.

David Burrows - February 28, 2017 at 1:02pm

Is it worth mentioning that there are three forms of alternative to a marriage (which itself may be dissolved in ordinary course):
(1) No marriage as the H sought to persuade the court here;
(2) A void marriage (‘null and void’ is a tautology), as here (ie bigamy, MCA 1973 s 11(b)) under MCA s 11: ie there was a ceremony but s 11 means it did not create a marriage; or
(3) A voidable marraige under MCA s 12, in which case it is up to a party to apply for an order to decalre it void, and to do so within appropriate time limits.

Do we know why the hearing was in private? Normally they are in open court (FPR 2010 r 7.16: after all Scott v Scott related to a nullity petition which should have been in open court and the wife’s solicitor was entitled to publicise details concering it….)

Andrew - February 28, 2017 at 1:44pm

What troubles me about this case, although it is not legally relevant, is the ceremony in the mosque in London in 1999. No notice to the Registrar, not a place registered for the celebration of marriages, no authorised celebrant, no civil registration; a non-marriage. If that had been the only ceremony the “wife” would have been without remedy. Which is as it should be; these so-called marriages are non-events and should not be recognised even as void marriages; and should therefore create no rights or liabilities between the parties. The greater good and all that.
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But it is utterly unacceptable that the trustees, managers, whoever is in control of mosques (or occasionally temples, gurdwaras, or synagogues) should allow these ceremonies unless there has been a civil ceremony first; or indeed unless they get their act together and get themselves authorised which is not that difficult.
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I get that this ceremony was in 1999 and perhaps would not happen now; but perhaps it would. It is time to get tough about this; I don’t know how except that the building should lose its rates relief. One way or the other the people running those places msut be induced to stop allowing non-marriages tob e celebrated there.

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