Apologies to all the Shakespeare fans for the butchering of that quote. It seemed to be appropriate for an interesting case I came across.
So, a marriage is a marriage is a marriage, right? Wrong. For a marriage to be validly performed in this jurisdiction (and by that I mean England and Wales) it has to comply with our law about what is and what is not a valid marriage. If the marriage is conducted outside of England and Wales, it has to be of a type that would be recognised within England and Wales for it to be considered a valid marriage.
Yeah and so what? I hear you ask. Well, you cannot be divorced if you are not married and it is only when you are divorcing that the court’s special powers are opened to allow dealing with finances between a married couple. Ergo, no marriage, no divorce, no marital finances.
That means sometimes, that a couple may be asking the court to declare whether their marriage is valid. (There is more to it than that – void and voidable marriages- but that would make your eyeballs bleed so I will not talk about that here).
The case I came across was about Mr O who was making an application to the court for a declaration that his alleged marriage to ‘Mrs O’ was not a marriage at all. Mr O said that whilst Mrs O was producing a marriage certificate of a marriage in Nigeria, not only was the marriage certificate a fake (and he had written evidence that suggested he was right from one of the government institutions in Nigeria), he was not even present where this alleged marriage took place. Mrs O was claiming there was a marriage and that she divorced him in Nigeria and…. you guessed it….she was looking for the financial matters to be deal with here. If there was a marriage and divorce recognised in England and Wales, the court here could deal with the financial matters. Handy, if Mr O only had assets here.
So what does the law say? The application to the court was for a declaration of marital status made under Part III of the Family Law Act 1986. Section 55 of the 1986 Act is headed “Declarations as to marital status” says:
(1) Subject to the following provisions of this section, any person may apply to the High Court or the family court for one or more of the following declarations in relation to a marriage specified in the application, that is to say—
(a) a declaration that the marriage was at its inception a valid marriage;
(b) a declaration that the marriage subsisted on a date specified in the application;
(c) a declaration that the marriage did not subsist on a date so specified;
(d) a declaration that the validity of a divorce, annulment or legal separation obtained in any country outside England and Wales in respect of the marriage is entitled to recognition in England and Wales;
(e) a declaration that the validity of a divorce, annulment or legal separation so obtained in respect of the marriage is not entitled to recognition in England and Wales…”
The judge then worked through the list, trying to see what category this application came into. Aha! You may be saying. It is (c) above. What the judge said was this:
In my view, the word “subsist” connotes the continuation of something which did previously exist. If it is not in issue that there was, at a certain time, a valid marriage, then one can use the language of “subsist” to describe whether or not that valid marriage was still continuing to exist on some later date. But, in my view, it is impossible, in ordinary English language, to use the word “subsist” in relation to a fact or status which is alleged never to have taken place at all. The gravamen of the applicant’s story and claim is that there never was, even for a particle of a second, any marriage at all between him and this respondent, and his claim simply does not fall within the language of “a declaration that the marriage did not subsist on a date… specified” even if the date specified is the very date upon which the marriage is alleged to have taken place. It follows that, in my view, there is simply no declaration sought on the present application that falls within any of paragraphs (a) to (e) of section 55 of the Act.
Read it twice. Subsist is not the same as exist. Mr O’s application was not made out. It did not come within any of the sections listed above. So, what then? Could the judge help? Nope. Because the same statute when on to say:
A court, on the dismissal of an application for a declaration under this Part, shall not have power to make any declaration for which an application has not been made
No declaration may be made by any court, whether under this Part or otherwise—
(a) that a marriage was at its inception void..
And just to make is really clear, the judge said:
It is, of course, true that the underlying case of this applicant is that there was simply no “marriage” or any kind of ceremony or event at all between these parties on 30 December 2016 in Nigeria. So the applicant is not contending that there was a marriage that was, for some reason, a “void” one, but, rather, that there simply was not a marital event at all. Nevertheless, it seems to me that of all the provisions in Part III in point in the present case, the one that the present application comes nearest to is seeking a declaration that the marriage was at its inception void. I am expressly forbidden by statue from declaring that. It seems to me, therefore, that I must dismiss completely the present application on the simple grounds that it does not fall within any of the forms of declaration that I am empowered to make under section 55(1), and that the provisions of section 58 to which I have referred completely prohibit me from making some alternative form of declaration that falls outside the scope of section 55(1).
So, where does that leave them? The judge did make a comment that the best place to sort out whether there was a valid marriage or not would be in the court system in Nigeria. That is that place, after all, where they were allegedly married and allegedly divorced.
This case is a really unusual one. It does just show you that the only orders the court can make are those that the court are empowered to make by the law passed by Parliament. Parliament makes the laws, the judiciary (courts) interpret and apply the laws.
If you need help with a knotty problem, contact me.
The case is here if you are interested