(Family Division, Holman J, 13 January 2016)
Financial remedies – Marriage – Financial remedies – Whether the marriage was null and void because one of the parties was already married – Whether the wife had committed bigamy – Whether the original financial remedies hearing was flawedThe wife’s appeal from a financial remedies order was allowed.
The Iranian husband and wife were married in the UK in 2001 and they subsequently had a child together. The marriage entered difficulties from 2007 and by 2011 they had permanently separated and divorce proceedings were initiated. During the marriage they purchased a property which was not rented out and held equity of approximately £48,000. The husband also asserted that they owned a flat in Iran which was purchased in the name of the wife but he claimed to have provided the purchase money. The wife resolutely denied the existence of that property.
The husband was employed and had an income of £28-29,000, but the wife was unemployed and was reliant on State benefits. Despite that, the judge hearing the parties' financial remedy proceedings at first instance failed to address the question of maintenance.
The wife had been married previously in 2000 but she claimed that it had never been consummated. There was dispute as to the level of knowledge held by the parties regarding the wife's first marriage but it was now accepted that at the time of the second marriage the first marriage had not been dissolved and was still subsisting. It followed that the second marriage was null and void.
During the first hearing both parties were unrepresented and there were communication difficulties because interpreters were unavailable. Nevertheless the wife was found to have committed bigamy and lied about it until forced to admit it. That finding was pivotal to the judge's decision to award the husband the entirety of the equity in the matrimonial home and three-quarters of the equity in the flat in Iran. The wife appealed.
The appeal was allowed and the case remitted to a different judge.
It had to be appreciated that there could be a world of difference between being a party to a marriage that was effectively null and void because one of the parties was still married and committing the crime of bigamy. Based upon the wife's evidence she believed she had been validly divorced from her first husband. Unless that was proved to be untrue and not to be an honest and reasonable belief then she lacked the mens rea to commit the crime of bigamy. In this case there had been very little consideration on the facts or of the wife's own state of knowledge or state of mind, and the judge was not justified on the evidence before her in reaching the conclusion that the wife was a bigamist. Her conclusions were obviously fundamental to the exercise of the judge's discretion in making the orders she did the judgment was not reliably or soundly based and had to be set aside.
The outcome reached by the judge was striking not only in respect of the transfer of property to the husband, but also because no consideration was given to maintenance. In view of the errors, those striking conclusions required further consideration.
The judge had failed to effect a decree of nullity. It was no longer possible for a judge to simply declare that the husband was entitled to a decree of nullity. There still remained on file a petition for divorce and a decree nisi. At the rehearing the judge was directed to male appropriate orders to rescind the decree nisi and substitute it for a decree of nullity and for a formal decree of nullity to be made in accordance with the procedural rules.
Neutral Citation number:  EWHC 110 (Fam)
Case No. FD12D0058
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Date: Wednesday, 13th January 2016
MR JUSTICE HOLMAN(Sitting in Public)
B E T W E E N :
- and -
GHOLAM REZA AGHATY
Transcriber Transcribed by BEVERLEY F. NUNNERY & CO.(a trading name of Opus 2 International Limited)Official Court Reporters and Audio Transcribers5 Chancery Lane, London EC4A 1BLTel: 020 7831 5627 Fax: 020 7831 firstname.lastname@example.org
MS S TYLER, generously acting free of charge, appeared on behalf of the appellant.
MR G.R AGHATY appeared in person.
J U D G M E N T
MR JUSTICE HOLMAN
This is an appeal by a lady, whom I will call "the wife," from the decision and order of a deputy district judge on 20th January 2015 as to financial remedies. I have already indicated to the parties that I propose to allow this appeal and remit the whole matter for redetermination by a full-time district judge to be allocated with maximum judicial continuity.
It may seem that, in what follows, I am being critical of the deputy district judge who heard this matter in January 2015. I mean no criticism of her at all. She was faced, as so often occurs since the almost wholesale abolition of Legal Aid, with two unrepresented litigants in person. The first language of neither of them is English, and, as will emerge, the wife in particular has difficulties with that language. In those difficult circumstances the deputy district judge clearly did her best, but after a careful review of the verbatim transcript of the whole proceedings I have had regretfully to conclude that her decision on certain essential aspects of the case is not reliable and that, in certain respects, the hearing was objectively unfair to the wife.
The essential factual background in short summary, for the purposes only of this appeal and judgment, is as follows. Both parties were born and brought up in Iran. The husband is now aged 49. The wife is now aged 48. In 1991 the husband came to live in England and has, I believe, lived here ever since. In 2000 these parties met, and in or about November 2000 the wife travelled to England, where they started living together. In July 2001 they went through a ceremony of marriage at an established register office in Hackney in London. In March 2003 the wife gave birth to their only child, a son. He is now aged about 12 and three-quarters. Apparently he has a degree of autism and associated disability.
In 2007 the wife left the then matrimonial home. There is a considerable dispute between the parties as to the extent, if any, to which there were subsequent reconciliations and separations, although it is common ground that they have been permanently separated since 2011 at the latest. If there was final separation even in 2007, this was a marriage and relationship of about seven years, which cannot be characterised as especially short. In any event, it is a marriage from which a child was born.
During the course of the marriage a house was bought in Dartford in Kent. It is right to say that the husband has always serviced the mortgage on that property. Initially it was purchased in his sole name, but in 2006 it was transferred into the joint names of the parties. The parties continue to own that property, but neither of them has actually lived there for several years and it is currently rented out. It is said that the equity in that property is around £48,000. Clearly that property is the former matrimonial home of these parties and is, as I say, currently in the joint names of the parties. There does not seem to be any other asset of significance here in England.
The husband contended, and continues strongly to contend, that additionally a flat was purchased in Tehran in Iran. He says that although the flat is currently owned by the wife, the purchase money was provided by him. It is a curious feature of this case that, as I understand it, the wife resolutely denies the existence of that property as an asset of either of these parties, or in any way connected with these parties, at all.
In summary, the decision of the deputy district judge was that the house in Dartford should be transferred from the joint names of the parties into the sole name of the husband; and that the flat which is allegedly owned by the wife in Tehran should be transferred as to 75 per cent to the husband and 25 per cent to herself. Having regard to that brief description of the facts, that was a somewhat striking decision and conclusion by the deputy district judge. Where the matrimonial home is in the joint names of the parties, some justification is normally required before it is transferred into the name of one party solely. That justification may often, of course, lie in needs. For instance, a property may be transferred from joint names into the sole name of one of the parties if that party is living in the property as his or her home with the child, or children, of the family.
In this case, as I have already said, neither of these parties actually lives, nor has lived for several years, in the house in Dartford. Currently it is, to all intents and purposes, an "investment" property. The wife has said at this hearing through her counsel that she would very much like to return to live in that property as the home of herself and the son, albeit perhaps with what is known as a Mesher charge. It is also somewhat striking that the bulk of the flat in Iran should also be transferred from the wife to the husband, especially in circumstances in which the very existence of that flat as an asset of these parties is so strongly contested.
An additional surprising feature of the decision and outcome of the financial remedies hearing is that neither in her judgment nor in her order did the deputy district judge give any consideration to, or make any reference to, maintenance, despite the fact that the wife is wholly dependent on forms of state benefits, whereas the husband has some income said to be of the order of £28,000 or £29,000 per annum.
The reason why the deputy district judge reached this somewhat striking outcome is frankly clear from her judgment. A fact which I have deliberately not yet mentioned, is that in February 2000, prior to meeting this husband, the wife had undergone a ceremony of marriage with a man in Denmark. She says of that marriage that it was a forced marriage and was never consummated, but it is not in issue that she went through the ceremony. It is now clearly established and accepted by both of these parties that, by the time of the marriage between these parties in the register officer in Hackney in July 2001, that first Danish marriage had not been dissolved by any process and was still subsisting. It therefore follows, as both these parties agree, that the marriage between them is null and void on the ground that, at the date of their marriage, one of the parties, namely the wife, was lawfully married to another person.
There was, and remains, a huge dispute between them as to the husband's state of knowledge as to the existence of that Danish marriage, and as to the wife's understanding at the date of the marriage between these parties as to the subsistence at that date of her Danish marriage. The proceedings currently before this court are proceedings for divorce based on two years’ separation and consent, and a petition issued by the husband in the Principal Registry of the Family Division on 9th February 2012. [I here mention parenthetically that the original of that petition on the court file bears a rubber stamp date, stamped by the court, of "09 Feb 2011". That, frankly, was a truly lamentable error by the court on issue, for it is quite clear from numerous other dates on the petition, and indeed from the number of these proceedings (namely FD12D ...) that the petition was issued in February 2012, not February 2011.]
The petition proceeded under the special procedure, and on 17th June 2013 a deputy district judge formally pronounced a decree nisi of divorce. Whether coincidentally or not, on that same date-- namely 17th June 2013-- solicitors then acting for the husband wrote a letter to solicitors then acting for the wife (now at Substantive Proceedings Bundle, p.D1) in which they said:"Our client has raised a concerning point. He has informed us that your client was previously married and there may be a query as to the date the previous marriage was dissolved. Could you provide us with documentary evidence of the date of dissolution of your client's previous marriage please?"That letter does not purport to have been sent by fax, and I will assume that it was sent through the DX, since that is the way in which it was addressed. I will assume, therefore, that it was received by the wife's then solicitors the next day, namely 18th June 2013.
On that date-- namely 18th June 2013-- the wife's solicitors wrote in reply:
"We thank you for your letter of the 17th instant. If your client is claiming that our client's marriage was not dissolved, surely the onus is on him to prove this. And if your client is claiming that our client's previous marriage had not been dissolved why did he commence divorce proceedings?"
I mention that that letter does not state that it is written on the instructions of the wife, or that between receiving the letter of the 17th June on the 18th June, and writing that letter of the 18th June, the solicitors had indeed communicated with, or taken instructions at all from, their client. Since the husband places enormous weight upon this letter, and it may be that the deputy district judge did also, it is quite important to analyse what it does say and what it does not say.
The second substantive sentence is clearly simply posing a question:
"And if your client is claiming that our client's previous marriage had not been dissolved why did he commence divorce proceedings?"
The first substantive sentence may also be regarded as interrogative. It says:
"If your client is claiming that our client's marriage was not dissolved, surely the onus is on him to prove this."
The use of the word "surely" gives to that sentence an interrogative tone. Nowhere in that letter do the solicitors deny that the wife had been previously married. Nowhere do they make any statement as to whether or not, or on what date, that first marriage had been dissolved.
Later in the autumn of 2013 the husband instructed a lawyer in Denmark, who did some research of official files or registers and sent an email dated 22nd November 2013-- now in Substantive Hearing Bundle at pD4-- in which he sets out that the wife was married on 24th February 2000 and divorced in the Court of Copenhagen on 6th September 2002, which is of course after the date of the ceremony of marriage between these parties in July 2001.
Later, in April 2014, the solicitors then acting for the wife wrote a letter to the court in relation to a hearing fixed for 1st May 2014 in which they said:
"Since the issue of these proceedings it has been discovered that the applicant 'wife' was in fact previously married and that her previous marriage was not dissolved. This means that her second marriage is null and void. Our client is legally aided. We simply cannot justify attending the hearing listed on 1st May 2014. The Legal Aid Agency would criticise us for attending the hearing when, in our submission, it is obvious the court does not have jurisdiction to deal with such an application ..."
That letter is no doubt part of the background of why in July 2014 the Legal Aid Agency discharged the wife's previous Legal Aid certificate. Consideration does not seem to have been given by her then solicitors to the need to sort out the procedural mess that these parties are now in, and to the possibility of a fresh petition for nullity; and, in due course, a decree of nullity, within which the wife could equally make claims for financial remedies.
During 2014 there were three directions type hearings before circuit judges in the Central Family Court. The first was on 1st May 2014 when both parties appeared in person. It was listed as an FDR but the judge concluded that the case was not suitable for resolution by FDR and refixed it for further directions on 14th August 2014. On that date it came before another circuit judge, namely Her Honour Judge Harris. The terms of her order on that date are of importance. So far as is material it reads as follows:
"Upon hearing the applicant in person, assisted by a representative of the Personal Support Unit, and the respondent in person and upon the applicant seeking an adjournment on the basis that the volunteer interpreter she had arranged through the Personal Support Unit was not in attendance ... and upon the representative of the Personal Support Unit stating that the applicant's English was not sufficiently good, in his opinion, to enable her to participate fully in the hearing It is ordered that:
(1) the hearing is adjourned to 25th September 2014
(2) the Court Service shall arrange a Farsi interpreter for 25th September 2014."
The case duly came on again before another judge on 25th September 2014. The order of that day recites: "Upon hearing both parties in person." The order does not refer on its face to the presence of an interpreter, but both parties agree that, on that occasion, a Farsi interpreter was present, having been made available by the Court Service pursuant to the earlier order of Her Honour Judge Harris of 14th August 2014.
The judge on 25th September 2014 gave various directions and fixed the matter for a final hearing on the 19th January 2015. Deeply regrettably, there is no reference on the face of the order of 25th September 2014 to the need for the court to arrange a Farsi interpreter to be present in order to interpret for the wife at the hearing on 19th January 2015. I frankly have no idea why the judge on 25th September 2014 did not make a direction in the same, or similar, terms to that made by Her Honour Judge Harris on 14th August 2014. It may be that the judge on 25th September 2014 considered the point and positively decided that it was not necessary to require the Court Service to arrange an interpreter. It may be that she mistakenly assumed that as an interpreter had been arranged for the hearing before her on 25th September 2014, one would also automatically be arranged for the substantive hearing on 19th January 2015. It may be that she simply did not consider the point one way or another.
So far as the wife was concerned, I have been told by her counsel at this hearing that she simply (and in my view eminently reasonably) assumed that, as Her Honour Judge Harris had made an order for an interpreter to be present on 25th September 2014, and an interpreter was indeed present, the court would arrange for an interpreter again at the hearing on the 19th January 2015.
I have also been told (although I stress that this was merely communicated to me by counsel on instructions, and I have no means whatsoever of independently verifying it) that shortly before the hearing on 19th January 2015 the wife telephoned the court to check that an interpreter would be present, and was told by some official that an interpreter would not be present because the judge had not made a direction for an interpreter at the hearing on the 25th September 2014, and there was nothing that the court could do administratively about it. At all events, those are the background circumstances in which this case came on for its final hearing over one and half days on 19th and 20th January 2015.
The first ground of appeal to this court, and the first point strongly submitted on behalf of the wife, is that there was a procedural unfairness at the substantive hearing precisely because no interpreter was available. In that regard, the deputy district judge was to say at paragraph 2 of her judgment on the 20th January 2015:
"The parties are Iranian and have UK passports. Both speak and understand English. Ms. Azizi [viz the wife] less well, but she can speak English adequately and I am satisfied she can understand it ... Neither party asked for an interpreter ..."
Of course, at the present hearing, I have not heard a single word from the lips of the wife, since she has been very ably represented by counsel. I have heard a great deal from the husband, who continues to represent himself. It is not at all in issue that, although English is not his original language of birth and upbringing, he has a very good command of English and does not appear to suffer any linguistic disadvantage in these proceedings. So it is clear that the deputy district judge was alive to the issue of language, but formed the judgment that: "She can speak English adequately and I am satisfied she can understand it." Further, it is agreed and accepted that when the judge said, "Neither party asked for an interpreter," that is correct.
The wife does undoubtedly speak some English. That is apparent not merely from what the deputy district judge stated but also from examination of the verbatim transcript of the proceedings. She certainly speaks sufficient English to have been able to ask for the assistance of an interpreter if she required one. I put it to her counsel that, as she did not even ask the deputy district judge at the hearing for an interpreter, it is difficult now to sustain the submission that nevertheless the proceedings were unfair, or the resulting order fatally affected, by the absence of an interpreter. Part of the answer to that is, as I was told on instructions, that only shortly before the hearing the wife had asked the court if there would be an interpreter, and had received the answer that I have already recorded. So she may have felt that there was nothing further she could do and that to ask the judge was pointless.
But, additionally, counsel strongly submits that there is an overarching duty on any judge to ensure a fair trial and, if a litigant appears to be disadvantaged by the absence of an interpreter, to halt the proceedings until one is available. The difficulty with that submission on the facts of this case is that, as the judge recorded, she was satisfied that the wife can in fact speak English adequately and she was satisfied that she can understand it.
For these reasons I am not myself prepared to accept, as a freestanding ground of appeal in this case, that there was a fatal unfairness simply because of the absence of an interpreter. But it is undoubtedly very regrettable that no interpreter was arranged, particularly having regard to the recital to the order of Her Honour Judge Harris of 14th August 2014, which I have already quoted. It seems to me that if and in so far as the court was in error in not arranging an interpreter for the hearing on the 19th and 20th January 2015, that error lay not so much with the deputy district judge at the hearing on 19th January, but rather with the judge who heard this matter on 25th September 2014 who should, in my view, have repeated the direction of Her Honour Judge Harris.
The deputy district judge said at the very outset of the hearing before her that she had read the papers carefully. I will assume from that that she had read and seen the contents of the order of Her Honour Judge Harris of 14th August 2014; that she was alert to the possible difficulties of interpretation; and that she would have stopped the proceedings if at any point she felt that the wife was significantly disadvantaged by the absence of an interpreter.
Having said all that, I do regard it as part of the general background to this appeal that as long ago as August 2014 a judge had clearly considered that the wife needed an interpreter, and that one was not present. When one reads the verbatim transcript one clearly sees that many of the recorded answers of the wife are somewhat "garbled" and it is not at all clear from the transcript that she fully understood every line of questioning and question, nor that her answers are entirely intelligible.
I move from that issue with regard to interpretation to the heart of this appeal and matter. As I said towards the beginning of this judgment, it is striking that after a marriage of some years’ duration the judge decided to transfer the former matrimonial home out of the joint names of the parties into the sole name of the husband, at a time when neither party was living in it as their home and in circumstances in which, apart from the disputed flat in Iran, it really represents the only significant asset of these parties. The reason why she did so leaps out of the pages of her judgment.
At paragraph 6 of her judgment she referred to the case of Rampal v Rampal
 EWCA Civ. 989 and said that that case:
"... established that there is no absolute bar to claims for ancillary relief being dealt with in a case where one of the parties to the divorce is guilty of bigamy ... The court stated that there had to be 'an exercise of proportionate judgment after careful scrutiny of the nature of the crime and the relevant surrounding circumstances.' The judgment refers to the court's 'abundant discretion' and states that there is no law that a bigamist cannot claim ancillary relief."
The deputy district judge then continued with this very important sentence:
"I do, however, take full account of the fact that Ms. Azizi did commit bigamy and lied until forced to admit it."
At paragraph 16, at the very end of her judgment, she said:
"I find that not only did the wife enter into a bigamist [sic] marriage, but that the husband was innocent of the fact ... The fact of her bigamy and dishonest evidence will be reflected in my order."
So the judge, very clearly, came to the view that this wife was a "bigamist," who had "committed bigamy," and had "lied until forced to admit it." Since she said that she took "full account" of those facts and that those facts "will be reflected in my order", it is clear that they were highly influential, if not pivotal, in her decisions to transfer the whole of the equity in the matrimonial home to the husband and indeed to transfer three-quarters of the alleged flat in Iran to the husband.
The question that arises is whether those findings and conclusions were fairly and reliably justified by the evidence in this case. At no stage had either party made any written statement. I do not say that in any way critically. It is merely a fact. Thus the entire evidence of the parties on this aspect of the case can only be contained within what they respectively said during the course of the hearing.
At the present hearing the wife has been most excellently represented by Ms. Sarah Tyler, counsel, who has generously acted what lawyers quaintly call "pro bono", but which in plain language means free of charge. She has taken me comprehensively through the verbatim transcript, as indeed the husband, acting in person, was later to do. When Ms. Tyler submits that the evidence in the transcript does not support the findings and conclusions of the judge, the husband asserts that the verbatim transcript (although an official one prepared by official court reporters of the utmost renown) is defective and that there were other answers or passages in the evidence, which for some reason have not been recorded. It is right to say that in a very small number of places the transcript does, as often occurs, include the word "(inaudible)" but that appears in the context of this transcript to refer only to the occasional, isolated inaudible word.
The first reference to the circumstances surrounding the wife's previous marriage appears on internal p.5 of the transcript. The deputy district judge asked her, "So what do you think my order today should be?" The wife answered: "I don’t know because after long time my husband using - I was married before, even since beginning he knew, he came to visit me and since 2000 I am living with my husband, and he deny now after 13 years. He is complain I was married. How could I possible my husband didn’t know 13 years? I was married. He knew we were ..." If that passage does not appear entirely articulate, that may point out some of the language and interpretation difficulties in this case.
The next relevant passage is on p.24 and p.25 of the verbatim transcript during the course of questions by the husband, Mr. Aghaty, to the wife. The passage reads as follows:
"Mr Aghaty: Did we raise the question about your marriage, previous marriage, in 2013? Did we send you a letter through your solicitor regarding the previous marriage?" [This, of course, was a reference to the letter of 17th June 2013 from which I have previously quoted.]
"A: Yes, they send it.
Q: What was your response?
A: I don’t understand, 'What was my response?'
Q: What did your solicitor reply to her questions?
A: I don’t remember.
Q: I remind you?
A: My solicitor sent ...
The Deputy District Judge: Do you want to read it out to me?
Mr Aghaty: Yes, madam.
The Deputy District Judge: Is this in the bundle?
Mr Aghaty: Yes, madam. It is D2." [This is a reference to the letter from the wife's solicitors dated 18th June 2013, which I have already quoted.]
"Mr Aghaty: I don’t know whether you like to read it yourself.
The Deputy District Judge: Yes. So this is your previous solicitors in June 2013 saying that Mr Aghaty had to prove that you had been married before. So what is your question?
Mr Aghaty: My question is now she just said I knew about the marriage." [This appears to be a reference back to the passage on p.5 of the transcript from which I have already quoted.]
"Mr Aghaty: If I knew about the marriage why did she say at the time: Look, you knew that I was married at the time, not turning round and write me a letter, 'You prove it if I was married'?
A: Because many times Mr Aghaty treating me - they would separate me ...
Q: Treating? We are not living in jungle?
A: From my child and he said, 'You are married. You run away from your family, your husband,' and since 2000 I was married, I was living with Mr Aghaty. Even start I was worried my family knows I'm with him in UK.
The Deputy District Judge: I want to make sure my note is accurate. Are you saying, 'I deny my previous marriage because I was scared'?
A: Yes, because I was scared about [their son] because always Mr Aghaty threatened me, even since I live with him. I went to counselling. I was very depressed. He was threatening me they will take [their son] from me. Always I was afraid to lose my son.
Q: This is a comment that just comes from me?
A: Yes." Pausing there, it does seem to me that when the deputy district judge put to her, "Are you saying, 'I deny my previous marriage because I was scared'?" the deputy district judge went further than that evidence of the wife justified.
The passage then continues as follows with the deputy district judge still asking the questions."
Q: If Mr Aghaty had known from the start that you were already married, instead of filing divorce proceedings here, he could simply have started proceedings for nullity. He could have just said to the court, 'My wife was married when I married her, so please declare that our marriage is annulled.' That was a very straightforward way of dealing with it?
A: Mr Aghaty asked because he knew from beginning. He came to Denmark in 2000 few times to visit me. How could I live with my husband because my marriage wasn't consummated by ..."
Q: All right. But I repeat my question?
Q: If he knew that you were already married?
Q: And you lived together for a while and you went through an English ceremony?
Q: And then you were unhappy together, he could easily have come to court and said: My wife was married when she married me, so our marriage is wrong. Please give me a decree of nullity. That would be the straightforward and easy thing to do. So I am bound to say the fact that he filed a petition for divorce suggests that he did not know
A: He didn’t know, maybe, but from - maybe he didn’t know he can use it because always he's looking to find something. Since we are married in 2001, he is telling you we had nothing. We live in his storage room and he told me, 'One day I will divorce you and I don’t give you anything.' And in 2001 I ask him: Have you got anything because we didn’t have a house, we didn’t have a car, didn’t have anything."
At that point Mr Aghaty took over the questioning and asked about other, unrelated matters.
It seems to me that there are considerable difficulties about that line of questioning by the deputy district judge. In the first place, she was pursuing a line of reasoning that may seem crystal clear to an experienced matrimonial lawyer, but may have been thoroughly confusing to the lay parties. Her line of reasoning was that if the marriage was in truth void and a nullity, what was the point or purpose in presenting a petition for divorce? This led her to what was clearly a provisional conclusion in one of her questions that, "So I am bound to say the fact that he filed a petition for divorce suggests that he did not know." It may, of course, suggest that to the experienced deputy district judge, but it does not at all follow that that conclusion follows from the fact that the husband presented a petition for divorce rather than a petition for nullity.
Indeed the husband himself was later to say that, "I didn’t know it was going to make any difference in my case" in answer to a question from the deputy district judge herself, "I did not know it was a big deal." Further, the line of questioning by the deputy district judge was later shown to have been completely fallacious. The assumption behind her line of questioning was, and is, that on the date that the husband filed a petition for divorce-- namely in February 2012-- he did not know anything about the previous Danish marriage, for otherwise he would have presented a petition for nullity. The husband himself was later to say that it was in 2010, i.e. some two years earlier, that he first learned about the Danish marriage.
It seems to me that there was a line of questioning by the deputy district judge to this unrepresented wife, whose first language is not English, which was, with the best will in the world, unfair and in fact based on a fallacy. But contained within it was a very clear provisional conclusion by the deputy district judge that the husband did not know anything about the Danish marriage until some time after he had presented his petition for divorce. There is no other material questioning of, or evidence by, the wife upon this topic.
When the wife came to ask questions of the husband she began asking about this, on internal p.58 of the transcript. The questioning is somewhat confusing, because instead of referring to herself as "I" or "me", the wife kept referring to herself in the third person as "she". Unfortunately whilst the wife was trying to develop this point she was cut off by the deputy district judge at internal p.59, line 16, where the deputy district judge asked, "Mrs. Azizi, why is this relevant?" and she answered, "No, because Mr Aghaty lying and I was in horrible situation ..." and the whole issue was never further pursued by her. At the very end of the transcript of the hearing, after all the formal evidence was over, the deputy district judge asked her on internal p.9 of the proceedings on the 20th January 2015, "Is there anything you want to say to me?" and Mrs Azizi said:
"Mr Aghaty lie a lot at court yesterday. He said I left him in 2007 after I had my passport and then he said he was living with me until 2011. How it's possible I left him and then, until 2011, how he could live with me? How he could buy the food for me if he didn’t know about my ex-husband? How he could come to Denmark? How he could stay with me? How he could contact with me? It is impossible after a long time. He find that I was married. He said he had contact with my sister and my sister told him ..."
Although not entirely coherent, the wife appears in that passage to be maintaining her position that from the outset the husband knew all about her first marriage and was lying when he said otherwise.
Having reviewed that evidence, I turn again to the judgment of the deputy district judge. I have already quoted from paragraphs 6 and 16 in which she recorded her conclusion that the wife had committed the crime of bigamy and had lied until forced to admit it. The extent of her analysis of the evidence on this aspect of the case is at paragraph 5 of the transcript where she said:
"The husband started divorce proceedings in 2012 and the decree nisi was pronounced in 2013. The husband discovered in the course of a telephone conversation with a relative of the wife in Denmark in 2010 that, at the time he went through a marriage ceremony, she was still married to a man in Denmark. Ms. Azizi denied this until documentary proof was obtained from Danish authorities at which stage she admitted it. In court giving evidence to me she agreed that she had lied. She asserts that the husband knew this all the time. He denies this and says he was first told of the marriage in 2010. Curiously he did not tell his solicitor about this previous marriage until after he had started divorce proceedings. He said that he did not know that it was a "big deal." As a result of the wife's refusal to admit bigamy, he had to spend £200 to pay a Danish lawyer to obtain evidence from Danish records."
That is the total extent of the analysis by the deputy district judge of the evidence on this point.
It seems to me, as Ms Tyler submits, that there are some serious weaknesses in that analysis. Nowhere in the evidence, or in the earlier history, had the wife "denied" that she had been married in Denmark. The highest it can be put is the letter that her then solicitors wrote on 18th June 2015 which, as I have already stressed, is essentially interrogative in form. In any event, it is far from clear that that letter was actually written on the instructions of the client. It seems to me that the deputy district judge appears to have been significantly mistaken when she took the view that the wife had "denied" the existence of the previous marriage, or its subsistence at the date of the ceremony of this marriage.
The judge then continued by saying, "In court giving evidence to me, she agreed that she had lied." We have pored over the verbatim transcript of the hearing before the deputy district judge and nowhere can I find any passage in which she "agreed that she had lied." It is in answer to that that the husband asserts that there are omissions from the verbatim transcript. But, short of listening to the whole of the tape-recording of a day and a half of proceedings in court, I am bound to treat the official verbatim transcript as accurate and reliable.
It seems to me, therefore, that there are two significant errors in the deputy district judge's analysis of, and approach to, the evidence in this case, which essentially is the evidence that was given orally before her. But as Ms. Tyler points out, there is a further very significant area of concern about this judgment. The deputy district judge clearly considered and concluded that the wife had committed the crime of bigamy. She says as much in paragraphs 6 and again 16 of her judgment. It is, however, essential to appreciate that there is, or may be, a world of difference between being a party to a marriage which is objectively null and void because one of the parties is still married to another living person, and actually committing the crime of bigamy.
As paragraph 31-9 of the current edition of Archbold
makes clear, the crime of bigamy requires mens rea or intent. As is stated in that paragraph:"An honest and reasonable belief by the defendant in a fact which, if true, would make his second marriage lawful is a good defence ..."
As I understand it, the case of the wife is that back in 2001, before she went through the ceremony of marriage with this husband, he knew perfectly well that she had already been through a ceremony of marriage in Denmark; and that, after purportedly making enquiries in Denmark, he had told her that she was validly divorced from that marriage and could lawfully marry him. Unless that case is proved not to be true, and not to have been an honest and reasonable belief, then she has not been proven to have committed the crime of bigamy.
I have already quoted in full all the material parts of the hearing on this whole issue. There was, frankly, very little consideration of the facts, or of the wife's own state of knowledge or state of mind, and, in my view, the deputy district judge was simply not justified on the evidence before her in reaching the conclusion and making the finding that the wife "did commit bigamy," nor indeed that she had "lied until forced to admit it." Since those conclusions were obviously fundamental to the discretionary decision of the deputy district judge in this case, it follows without more that, in my view, her judgment is not reliable or soundly based and must be set aside.
In her perfected grounds of appeal and her very helpful Skeleton Argument dated the 11th January 2016 for this hearing, Ms Tyler makes a number of other points with regard to the judgment. For instance, she says that there was no sufficient consideration of a number of the section 25 factors in this case. I do not reject those points but, in my view, there is the decisive reason why in any event this decision and order must be set aside as I have already described, and it is not necessary for me further to consider the other points.
I do, however, briefly mention one further ground of appeal, which relies upon an application to adduce fresh evidence. It is quite apparent from passages which I have already quoted from the judgment, and from the judgment as a whole, that the deputy district judge regarded the husband as a truthful and reliable witness, and the wife as a dishonest and lying witness. In support of her appeal the wife has produced her own mobile telephone, upon which there remains texts or electronic messages passing between her mobile phone and that of the husband on 28th January 2015, namely just over a week after the decision and judgment.
The husband has had an opportunity in the courtroom to examine these texts or messages actually upon the wife's mobile telephone itself, and is forced to accept that the photocopies of the messages-- now in the Appeal Bundle at p.C1 to p.C13-- are true photocopies of what appears upon the mobile telephone. He further accepts that these are messages passing as a conversation between her telephone, on the one hand, and his mobile phone, on the other hand. He says, however, that he believes that on the night in question-- namely 28th January 2015-- the wife was actually present in his own home and that she obtained access to his mobile phone and deliberately concocted messages between the two of them.
It seems to me, however, that at an Appeal Hearing such as this I have to take the messages at face value, and it is common ground that they are messages passing between her and his phone respectively. Provisionally, it strikes me that it would require a lot of ingenuity and inventiveness on the part of the wife, acting solely with these two phones, to have concocted the whole telephone messaging conversation that now appears between p.C1 to p.C13.
The conversation is clearly bitter and vituperative between both of them. It made many allegations, to which it is not necessary to refer. It does include, at transcript p.C4, her saying to him, "... you lied to court but I will show you," and he replying a few moments later, "We saw already in court I will destroy you." Further on at p.C13 she said to him, "Do U think you are a king in UK? You lied a lot in court but there is God." To which he answers, "I lied but court give me everything ...". Ms Tyler submits that that evidence, which by its nature could not have been adduced at the hearing since it only arose about a week later, contains a clear admission by the husband that, far from being the witness of truth that the deputy district judge considered him to be, he had in fact lied to the court.
I mention this aspect of the case, but since it is clear to me that, in any event, this appeal must succeed for the reasons I have already given, I do not find it necessary to fortify my decision by reliance upon that further evidence.
I have already stated that the outcome reached by the deputy district judge was a striking one in that she transferred the whole of the equity in the jointly owned matrimonial home from the wife to the husband. She transferred the bulk of the disputed flat in Iran from the wife to the husband, and she gave no consideration at all to maintenance. It seems to me that in view of the errors of the deputy district judge, to which I have referred, those striking outcomes require further consideration.
I am deeply conscious of the enormous amount of time that has elapsed in this case, above all since final separation (even if in 2011), and even in the year since that so-called final hearing. I am deeply conscious, too, that objectively the amounts in issue in this case are small-- as I have said, the equity in the Dartford property is said to be around £48,000-- but for people who are not possessed of much wealth even small sums are very important. Justice requires that I set aside this order and remit the whole question for rehearing by a fresh and, in my view, full-time district judge.
There is one other aspect of the case to which I must now briefly refer. In the light of the evidence before her, and of the position taken by both parties that their marriage is indeed void and a nullity, the deputy district judge ordered as part of her order of 20th January 2015 as follows:
"(1) The proceedings [with their number] be treated as an application for the annulment of the marriage between the parties on the basis that [the wife] was married to [the first husband] at the time she entered marriage with Mr Aghaty.
(2) [The husband] is entitled to a decree of nullity."
There the procedural aspects of this matrimonial suit appear to have come to a rest.
Frankly, that is not appropriate or sufficient or adequate. It is all very well for a deputy district judge to say in a short sentence that the husband, "is entitled to a decree of nullity," but that does not represent or amount to a decree of nullity. Further, even today in January 2016, there remains the petition on file for divorce and the decree nisi of divorce, which was pronounced on 17th June 2013, to which I have referred.
In what I would describe as the "good old days", I could readily have sorted out all these procedural irregularities today and produced for these parties a valid decree of nullity. I could have permitted the husband to present a pro forma fresh petition for nullity without reservice. I could have rescinded the existing decree nisi divorce. I could have dispensed with all other procedural formalities. I could have heard very brief oral evidence, lasting about two minutes, in support of his petition for a decree of nullity, and I could have pronounced such a decree on the next day upon which I am sitting and it had been listed for pronouncement in open court. Unfortunately, in this computer dominated era it is no longer practicable or wise for judges to adopt these procedural shortcuts. If I were to do that, the computer would probably not recognise the existence of the petition for nullity. It would have difficulty in coping with the rescission of the decree nisi of divorce, and, frankly, I would perpetuate the present procedural mess.
Accordingly I propose to direct very clearly today that the existing decree nisi of divorce must not be made absolute. But as well as remitting to a full-time district judge sitting in the Central Family Court the redetermination of the parties' cross claims for financial remedies, I also remit this case to a district judge in order that he or she may make appropriate orders to rescind the decree nisi of divorce and to substitute a petition for nullity, and for a formal decree of nullity in accordance with the procedural rules. That concludes my judgment. … [other dialogue omitted]
MR JUSTICE HOLMAN: I want you to understand, Mr Aghaty, I have decided that that order cannot stand for the reasons I have given. But I have not decided what the outcome of this case should be. There are all sorts of points that you make about her veracity and all sorts of other aspects of this case, which are all there for a proper reconsideration at the fresh hearing. I am afraid it did go wrong for the reasons I have tried to identify. It was not helped by the absence of an interpreter. It will have to be reheard, by a different judge obviously, with an interpreter present. In fact if you pass that back I think you can say that an official interpreter must be present. (Same handed) I will just add it in at (5) and I will make (5), (6) and (6), (7) and (7), (8). The Court Service must arrange for an interpreter-- it is just Farsi, F A R S I, is it?----
MS. TYLER: Yes.
MR JUSTICE HOLMAN: --to be present to interpret for the wife at ALL further hearings in this matter. I can only put that down as a marker. Ms. Tyler, before you depart from this case you must ensure, once this order has been typed up and sealed and perfected, that it is rammed home to the people in the Central Family Court that for the hearing in March they have got to arrange an interpreter. Your successor for the 14th March must do what unfortunately was not done before the judge at the September hearing; that is to say, " will you please make a direction, following on from what Holman J has said, for a Farsi interpreter at the next hearing," and so on. I am afraid the way it works, unless it is rammed home to the court and through the court to the administration that an interpreter must be booked, they do not get booked.
MS. TYLER: No, seemingly even when a direction is made they occasionally do not turn up.
MR JUSTICE HOLMAN: I know, so I am afraid you will just have to keep the pressure on.
MS. TYLER: Yes.
MR JUSTICE HOLMAN: But I cannot do more than I have done.
MS. TYLER: No.
MR JUSTICE HOLMAN: All right, very well. I am extremely grateful to you all. Thank you, sir. Thank you, madam.