I declare you ‘Husband and Wife’
In the recently reported case of N v D [2015] EWFC 28, the Court had to consider the validity of a foreign marriage ceremony which took place in Nigeria on an application by the wife (N) for a declaration of marital status under S.55 of the Family Law Act 1986. The case is an interesting one and we thought we would highlight what it was about and what factors the court takes into account when determining the validity of an English marriage.
Family Law Act 1996
The relevant provisions are found in S.55 – Declarations as to marital status:
(1) Subject to the following provisions of this section, any person may apply to the High Court or a county 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.
(2) A court shall have jurisdiction to entertain an application under subsection (1) above if, and only if, either of the parties to the marriage to which the application relates-
(a) is domiciled in England and Wales on the date of the application, or
(b) has been habitually resident in England and Wales throughout the period of one year ending with that date, or
(c) died before that date and either—
(i) was at death domiciled in England and Wales, or
(ii) had been habitually resident in England and Wales throughout the period of one year ending with the date of death.
(3) Where an application under subsection (1) above is made to a court by any person other than a party to the marriage to which the application relates, the court shall refuse to hear the application if it considers that the applicant does not have a sufficient interest in the determination of that application.
Validity of marriage contracted abroad
In a marriage contracted abroad, reference is made to s.14 of the Matrimonial Causes Act 1973, which leads to application of the rules of private international law. The leading text is found in Dicey, Morris & Collins, The Conflict of Laws 14th ed (2006) at page 789 where it is said that the formal validity of a marriage contracted outside of England and Wales is governed by the law of the country in which it was celebrated – the lex loci. If the marriage is formally valid in that country, it is formally valid everywhere and the converse is true.
N v D [2015] EWFC 28
The law report sets out the facts and principle features of the case as follows. N and D were 33 and 34 years old respectively. They are Nigerian but have lived in England since childhood. N is Igbo and D is Yoruba. They both come from families of high standing. They both came to live in England at around seven years old. Since then, England has been their home but each of them has maintained significant ties with Nigeria and has returned there fairly regularly. N’s Nigerian family is based in her tribal village, while D’s family is more to be found in Lagos. Both families are practising Christians.
The parties’ relationship as a couple, which both describe as having been up and down, began in 2002 and ended in 2011. They have four children, born between 2003 and 2009. From 2004 onwards they lived at the address now occupied by N and the children.
The parties’ first child was born in June 2003 and their second child was born in September 2004. They were given D’s surname at birth, but this was subsequently changed to a double-barrelled surname including N’s surname. This was because N experienced difficulties travelling internationally with a different name from the children. When the third and fourth children were born, they were also given the double-barrelled name.
The marriage
The arrival of the second child created a renewed focus on the parents’ status. A major event was planned for 4 January 2005 in N’s tribal village. The arrangements were carried forward by N’s mother and her brother A in collaboration with family members living in Nigeria.
After the marriage, the couple continued to live in London as a family. The relationship between D and N remained turbulent and in 2011 it broke down altogether.
Customary Marriage
An expert in Nigerian law, Professor Oba Nsugbe QC SAN, was jointly instructed. Professor Nsugbe explains that Nigerian law recognises Christian marriage, statutory marriage, Islamic marriage and customary marriage. Of the last, he writes:
“Customary marriage in Nigeria… is an institution with strong traditional roots and is indigenous to the culture of the people. It is a very significant event in the community. Amongst the Igbo, for example, it does not only involve the union of a man and a woman as husband and wife, it also embodies the coming together of two families…. Therefore, it is usually a very inclusive affair, involving often not just the immediate families of both bride and groom, but also extended family, community elders, and indeed the wider community members as well.”
He advises that, while customary law may differ from tribe to tribe and between localities, the essential requirements of a valid marriage are largely consistent. Among the Igbo and Yoruba, the essential requirements are as follows:
Parental consent: this reflects the status of customary marriage as an alliance between two families.
Consent of the parties: it would be considered contrary to natural justice for a person to be compelled to marry.
Capacity to marry: that is not at issue in this case.
Bride price or dowry: this is one of the most distinctive features of Nigerian customary marriage. It represents a tangible sign of the value being placed upon the woman being transferred from her family to that of the groom. It can be the giving of various items of goods, clothing, kola nuts, cash, or a combination of these things.
The formal handing over of the bride at the marriage ceremony at which the parties are declared man and wife. “What matters is that the wife has been “given” to the groom’s family at the wedding, often demonstrated by them sitting together or by her moving to the groom’s side. In addition, even this important act must be placed in context where you have a situation in which the groom and bride have been cohabiting as in effect bride has already been handed over to the husband’s family.”
Professor Nsugbe writes that,
“Although sometimes consisting of little more than both families and close friends, the Igbo marriage is invariably a large and colourful event, often featuring the whole village. This is particularly so when the family of the bride occupy a position of prominence in the village or in the locality. There will be a distinctive “family uniform” for the bride’s family and all those associated with her (this was typically a Yoruba tradition). The ceremony will usually begin with music and entertainment which is continued through the arrival of the groom and his entourage. The bride’s family and close relations will receive them often dancing towards them singing or issuing words of greeting and welcome. This is usually led by prominent women and their helpers on the bride’s side. At this point, the bride will not be present, as she is kept out of sight for the time being. The groom’s family will present their gifts and dowry which are checked and accepted. An appropriate time the bride will make her entrance, dancing towards the assembled families with her “asoebi” girls or ladies (similar to bridesmaids). She will greet everyone as she dances before taking her place seated with her family. She will be colourfully but simply dressed and often is adorned with jewellery consisting of necklaces, beads and even anklets.
At the time of his choosing, the bride’s father or the male standing in for him will say prayers for his daughter and give her a glass of palm wine. She will take the glass and seek out her husband-to-be to offer him a drink. His drinking the wine is a sign of confirmation of the couple’s union. The couple will then greet their families together effectively now as man and wife. Further pressure and blessings will be offered up for them and they will dance to the appreciation of the families who may demonstrate their approval by “spraying” the couple with money. The couple are now married and may proceed to other formalities such as the cutting of the wedding cake and so on.”
Mr Justice Peter Jackson goes to some length to summarise the background and lead up to the ceremony in terms of the evidence given by the numerous family and other witnesses, aswell as correspondence. Amongst which, a music CD was also produced, with the playlist containing religious music for the ceremony. 50 to 100 copies were made and given to guests. D was even described as a ‘keen DJ’ and whilst he denied any involvement in the production of the CD, the Judge found that he was involved in the production of the CDs themselves. The CD features too in the photos of the event.
The ‘Wedding’ Photos
These are described by Jackson J. as being of ‘unusual significance’ in understanding the true nature of what happened on that fateful day. A full list is given in the judgment, but here are some examples:
N at the outset in a simple red outfit, holding a bowl and surrounded by young women in matching green dresses (for convenience only I call them her bridesmaids)
D arriving with his party of men and women. He is dressed in gold. They are dressed in blue and white.
N has changed into her golden outfit and is wearing formal jewellery
They cut a cake in the shape of a calabash with icing reading “[N] [D] 2005”. Each name has a heart around it.
A striking close-up of N and D, both smiling, wearing gold, seated on a dais reserved for them and surrounded by the bridesmaids in gold head-cloths. It is an unmistakable, classic wedding photograph in any culture.
A photograph of the tent occupied by the visitors, labelled with a sign clearly saying “INLAWS”
D’s sister S holding one of the CDs while standing with D and N and N’s parents.
The couple with a group of women, one of whom is holding one of the CDs.
As a consequence of the evidence, Jackson J. with reference to the report of Professor Nsugbe was satisfied that a customary marriage did take place, not least due to the CD and photos proving difficult to refute as anything other than being consistent with that the ceremony was in fact a wedding. A declaration of marriage was made the judge adding,
“….both fully understood the commitments that they and their families were making. Their ignorance of the position under English law cannot undo this. A valid English marriage is not affected by the ignorance of the parties about whether it will be recognised elsewhere, and the same must apply in reverse.”
Implications
The declaration means that N can now pursue financial claims in this jurisdiction without the need to rely on Schedule 1 of the Children Act 1989 for financial provision for the children or Part III Matrimonial Proceedings Act 1984 or even TOLATA 1996. It is however a complex area of law, potentially overlapping both validity of marriage domestic or otherwise and international jurisdiction with the attendant financial aspects which can differ greatly depending on whether the marriage itself exists.
Contact
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If you would like more details on this or want to discuss your family law matter, please do not hesitate to contact James, Frank, or Evelyn. Paradigm Family Law offers a free initial consultation with a top rated divorce lawyer and our fixed fee solutions cover financial proceedings from start to finish. You can call us on 01904 217225 or email us to [email protected].
