24th November 2016
Judgment regarding a decree of nullity where the parties agreed that there was nothing capable of recognition as a marriage
Facts:
- H, aged 74, was married to his first wife in 1964. This marriage subsisted until her death in 2015. W, aged 61, was married to her first husband in 1972. This was terminated by Talaq in 1994.
- The parties undertook a marriage ceremony in London in 1999. H claimed that W knew that he was still married; W denied this.
- Both parties subsequently had doubts about the legality of the marriage due to the status of their previous relationships.
- In 2002, W applied for a Khula in Pakistan, a decree which deals with the recognition of an oral or unregistered Talaq. This was granted on 15th April 2003.
- In respect of the alleged marriage, W first claimed that on the 15th August 2003, the parties had a telephone conversation with an Imam and completed the formalities of a Nikkah – thus entering into an Islamic marriage. She later changed her case to assert that they both flew out to Pakistan and had a formal ceremony on the 28th August 2003.
- H claimed that W was lying: it was his case that the telephone conversation on 15th August 2003 and the ceremony on 28th August 2003 never took place. Further, H submitted that the marriage deed was a forgery.
Held:
- Francis J preferred W’s evidence for the following reasons:
- H claimed that the marriage deed was a forgery, but had not made a Part 25 application pursuant to DJ Robinson’s previous order regulating permission for a SJE to report on the veracity of the marriage deed.
- H was at all material times represented by solicitors and counsel, but denied this until faced with the order that recorded the parties’ representation.
- H said W had not travelled to Pakistan. W produced her passport which provided incontrovertible evidence that she had done so on the relevant dates.
- H said W had never been to his property where she alleged the ceremony of marriage took place on 28 August 2003. W produced photographs of the parties outside the property.
- H did not call the witnesses detailed on the marriage deed to support his case. He gave contradictory evidence as to whether he knew the witnesses or not.
- H’s evidence in the witness box contradicted the evidence he gave in his statement.
- Therefore, Francis J found that W believed that H was divorced from his first wife in 2003. There was a ceremony which purported to effect marriage between them. After this, W believed that they were lawfully married.
- As the Nikkah was never registered and H was still married to his first wife, this marriage was not capable of recognition as a valid marriage.
- However, due to the parties’ intentions and beliefs that this was a valid ceremony of marriage, the ceremony created a void marriage and W was entitled to a decree of nullity.
