K v K: Consideration of conflicting facts and a decree of nullity

    In this case, the parties agreed that they were not lawfully married so the court had to consider whether the petitioner could be granted a decree of nullity. Parties are entitled to a decree of nullity in circumstances where their marriage is either void or voidable.

    The law

    A voidable marriage is essentially defective and may be annulled if the marriage was not consummated, there was a lack of consent, either party had an STD at the point of marriage, or the woman was pregnant by another man at the time of marriage. It was not suggested that this marriage was voidable so the court was concerned with whether the marriage was void or a non-marriage.

    A non-marriage treats the parties as cohabitees, as if the marriage has not taken place. Although there is no strict definition of a ‘non-marriage’ within case law, where there is failure to comply with the Marriage Act 1949, the ceremony will be a non-marriage.

    A void marriage entitles the parties to a decree of nullity under s11 of the Matrimonial Causes Act 1973 and financial remedies under sections 22–24. A non-marriage results in the couple being treated as cohabitees and restricts financial claims to either Schedule 1 of the Children Act 1989 or TOLATA.

    Background

    The petitioner, ‘Mrs K’, and the respondent, ‘Mr K’, agreed that they were not lawfully married and that Mrs K was not entitled to a decree of divorce. The background facts are of particular relevance in this case, as there was a significant dispute between the parties.

    Agreed facts

    At the time of the hearing, Mr K was 74 years old. In 1964, Mr K was married to a Mrs B and remained so until her death in 2015. Together, they had four children, who were all of adult age at the time of the hearing.

    Mrs K was 61 years old at the time of the hearing. In 1972, she underwent an arranged marriage to Mr Z in Pakistan which was terminated by Talaq in 1994, by which time Mrs K was habitually resident in England. Together they also had four children. In 1999, Mr and Mrs K entered into a marriage ceremony at a Shia Mosque in Tooting, South London (‘the 1999 ceremony’). Mr K was still married to Mrs B, though Mrs K asserts that he told her he was divorced. Mrs K was concerned that the 1999 ceremony was invalid from early on: firstly, she was concerned that her Talaq had not been registered at the relevant town council; secondly, in December when Mrs K visited her mother in Pakistan, told her that she was married and showed her the Nikkah, her mother was concerned as Shia Islamic ceremonies permit temporary marriages.

    On 27 September 2002, Mrs K applied for a decree of Khula to deal with the recognition of the Talaq, which was then granted on 15 April 2003. On 7 January 2003, Mrs K changed her name from Mrs Z to Mrs K.

    Mrs K’s case – the facts

    Mrs K’s case was that, upon discovering that the 1999 ceremony may not have been valid, she immediately stopped having sexual relations with Mr K, and did not re-engage in intimate relations until 28 August 2003. This date was significant as Mrs K also told the court that on 15 August 2003, she and Mr K spoke with an Imam in Pakistan over the phone and arranged a marriage contract. The parties flew out to Pakistan and, on 28 August 2003, there was a formal ceremony at a property owned by Mr K, called WH.

    Mr K’s case – the facts

    Mr K submitted that the telephone call had not taken place and that neither he nor Mrs K attended a formal ceremony. In fact, he stated that Mrs K had never visited WH. The court drew Mr K’s attention to the marriage deed, which bore his signature and his thumb print but Mr K claimed that there had been a forgery.

    Findings on the facts

    Mr Justice Francis stated that Mr K had a high hurdle to overcome if he was alleging fraud. In hearing the evidence and weighing up the facts as presented by the parties, the judge had the following observations:

    • Mr K was asked why he did not appoint an expert to test the veracity of the marriage deed, particularly as he was given permission to do so by District Judge Robinson in March 2016. Mr K told the court that he did not know that he could make the application. In cross-examination he was informed that saying that he did not know about the hearing was not an excuse. Mr K falsely told the court that his barrister had not been present at the hearing. He then changed his mind and said that he did not make a conscious decision to get the document properly examined. The judge held that Mr K was being deliberately evasive.
    • Mr K told the court that Mrs K had completely concocted the phone call and her trip to Pakistan but her passport showed that she had made the trip.
    • Mr K told the court that Mrs K had never been to WH and that it would have been impossible for her to go to WH because it was being let to another party. The judge allowed the inclusion of photographs showing Mr and Mrs K outside WH to be admitted into evidence. After seeing the photos, Mr K said that Mrs K had attended the property, but not since it had been rented and said that he was very confused. The judge held that Mr K was not confused but deceitful.
    • The marriage deed showed that witnesses had been in attendance. Mr K remained firm in stating that Mrs K had fabricated the entire ceremony, yet did not seek evidence from either witness. The judge found this quite extraordinary and thought that it was because Mr K knew that they were there at the ceremony.
    • The judge noted that Mr K did not challenge Mrs K on her claim that they had not been intimate until after the 28 August 2003 ceremony.
    • The judge observed that Mr K had given two contradictory versions of events about the preparation of the divorce deed in April 2014. On 17 April 2014, Mr K gave formal written notice to the petitioner of their divorce. The divorce deed did not make reference to the marriage or ceremony of August 2003 and referred only to the 1999 ceremony. W’s barrister, Mr Lewis, asked Mr K whether he had had legal advice in respect of the divorce deed. Mr K said that he had not taken advice but his statement dated 29 April 2016 referred to the legal advice he had received. The judge took this to be “further evidence of the respondent adjusting his evidence to fit what he thinks to be the needs of his case at a given moment”.

    In considering the respective cases given by Mr and Mrs K, the judge held that he had “no hesitation, where there are issues of fact between them, in preferring the evidence of the petitioner over that of the respondent”. The judge was therefore satisfied that the phone conversation did take place with the Imam and that Mr and Mrs K attended a marriage ceremony on or about 28 August 2003 at WH which purported to effect the contract of marriage between them and that a Nikkah document was formally signed in the presence of witnesses.

    However, the Nikkah had not been registered and it was also likely that Mr K was still married to Mrs B.

    The judge held that Mrs K honestly believed that Mr K was divorced and that, from on or about 28 August 2003, she was lawfully married to Mr K. The judge was satisfied that Mrs K “did not in any way appear to… be capable of the sophisticated fraud which the respondent alleges” and that her case remained consistent throughout proceedings.

    The question of the marriage

    It was common ground that the events of the August 2003 ceremony did not create a marriage recognisable in England and Wales. The judge had to consider whether Mrs K was entitled to a decree of nullity in circumstances where the case involved potential polygamous marriages and bigamy.

    The judge took the view that the starting point was Rampal v Rampal (No. 2) [2001] 2 FLR 1179, in which the key point arising was the clear confirmation that an actual bigamist marriage was not itself a bar to the relief that the petitioner seeks. Counsel for Mrs K submitted that it was possible to distinguish Mr and Mrs K’s case from Rampal, as the fact that the marriage may have been potentially polygamous was not a bar to the relief Mrs K sought.

    In considering the legal effect of the August 2003 ceremony, counsel for Mr K relied on Dukali v Lamrani [2012] EWHC 1748, particularly the reference to non-marriages. The judge considered that the key passage to consider was para 26.

    Judgment

    The judge ultimately held that “the fact that the parties intended and believed that this was a valid ceremony of marriage are highly material when I decide this on a case by case basis, I am completely satisfied that the petitioner is entitled to the decree of nullity that she seeks.”

    Commentary

    The stakes are often high for parties seeking a decree of nullity: if the petitioner is successful, they are able to make an application for financial relief, if they are unsuccessful, their financial claims as a spouse fall away and they may seek recourse under TOLATA or Schedule 1 of the Children Act 1989.

    K v K makes for particularly interesting reading as the parties are so polarised in their recollection of the facts. This case serves as a useful reminder that the court will look to the intention of the parties at the time of the ceremony when deciding whether to award a decree of nullity.

    To read more about void marriages, click here