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Recognition of foreign marriage—implications of (Padero-Mernagh v Mernagh)

Date:28 MAY 2020
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What are the practical implications of this case?

Cases involving bigamy are relatively rare, and the judgment of Williams J in Padero-Mernagh v Mernagh provides a useful analysis of the relevant law in that regard. Of particular note, however, is the way in which the final hearing was dealt with remotely, in light of the COVID-19 pandemic.

The final three-day hearing was listed for 30 March 2020, however, the President of the Family Division, Sir Andrew McFarlane, issued ‘COVID 19: National Guidance for the Family Court’ on 19 March 2020, following directions from the Lord Chief Justice on 24 February 2020 which stated that ‘No hearings which require people to attend are to take place in any County or Family Court until further notice, unless there is genuine urgency and no remote hearing is possible.’ Since it was considered likely that a fair hearing could be achieved remotely, arrangements were made with parties and Queen’s Proctor for this hearing to be conducted remotely by Skype.

30 March was set aside for reading and for testing the Skype facility. The hearing itself took place on 31 March, with 1 April being set aside for judgment writing. In advance of the hearing, the Queen’s Proctor provided written submissions. The husband filed an email in which he made legal submissions. A bundle of documents had been compiled from the court file and indexed and provided to the Queen’s Proctor. The judge also had a copy of that bundle and the index was provided to each of the parties in advance of the hearing to try to ensure that all concerned had access to the relevant documents.

Aside from technical and connectivity issues, the remote hearing protocol reminded parties that it was an offence under the Coronavirus Act 2020 to make any unauthorised recording of the proceedings and indicated the expected conduct of the hearing, for example, for there to be no interruptions of other speakers, for the parties to only to start speaking when invited to do so and that anything urgent should be indicated by a palm up to the screen. Apart from minor technical glitches and occasional interruptions by the husband, the hearing proceeded in accordance with directions. All involved abided in the main by the ground rules and a fair hearing was achieved.

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What was the background?

The petitioner wife issued an application for divorce. The respondent husband asserted that their marriage in the Philippines in 2005 had been a bigamous marriage in that the wife had remained married to an individual (R) who she had married in the Philippines in 1994 and had remained married to him when she had married the husband. The wife maintained that her marriage to the husband in 2005 was a valid marriage and that as a British citizen she was entitled to a divorce under English law. She maintained that they obtained a licence to marry as required under Philippine law and that the marriage was solemnised by the solemnising officer who is required to register the marriage with the Philippine Statistics Authority. The 1994 marriage certificate issued by the national statistics authority of the Philippines taken together with the wife’s evidence appeared to demonstrate that a valid marriage had indeed taken place in 1994.

The husband’s argument was that the marriage was bigamous and while it might be treated as effective in Philippine law it could not be subject to a divorce in England but must be annulled. Alternatively, he argued that the marriage process did not comply with Philippine law, that the certificate wrongly recorded details of the marriage ceremony and thus was not a valid marriage.

The petition was lodged on 14 July 2018, followed by a cross-petition of nullity filed by the husband on 4 October 2018. Williams J ordered that the case be sent to the Queen’s Proctor to argue various questions which the court considered to be expedient and necessary including whether the marriage undertaken in the Philippines on 21 March 2005 was valid according to the law of the Philippines, what effect under Philippine law the previous ‘1994 marriage’ might have on the validity of the 2005 marriage and any circumstances which showed that either the 2005 marriage was not a valid marriage under Philippine law at the time it was undertaken, or if the 2005 marriage had become invalid or otherwise come to an end.

What did the court decide?

In English law a foreign marriage is formally valid only when it complied with the formalities required by or recognised as sufficient by the law of the country where the marriage was celebrated (lex loci celebrationis). When determining whether to grant a decree of nullity the court would apply English law as set out in sections 11–12 of the Matrimonial Causes Act 1973 (MCA 1973). Theoretically, the court could determine, pursuant to MCA 1973, s 14(1), that the marriage could be annulled on the basis that the validity of the marriage would fall under the rules of private international law to be determined by reference to the law of the Philippines.

There is no English authority on the issue of whether a marriage could be annulled in England on some ground quite unknown to English domestic law. In Akhter v Khan and another [2020] EWCA Civ 122, [2020] All ER (D) 88 (Feb), the Court of Appeal confirmed that defects in the form of a marriage only provided grounds for annulment if purported to comply with the provisions of the Marriage Acts 1949 to 1986. Thus, defects in the form of marriage could only provide grounds for a decree of nullity if it fell within MCA 1973, s 14. MCA 1973, s 14 provides that where any matter affecting the validity of a marriage would fall to be determined by reference to the law of another country, nothing in MCA 1973, ss 11–13 preclude the determination of that matter or require the application to the marriage of the grounds in MCA 1973, ss 11–12 except so far as applicable in accordance with rules of private international law.

Had the evidence established that the husband had knowingly participated in a bigamous marriage in the Philippines, combined with his manipulative stance in relation to the granting of a divorce, this might have constituted sufficient reason on public policy grounds to decline to annul the marriage.

Williams J concluded that the marriage entered into by the wife and the husband on 21 March 2005 was undertaken when the wife remained lawfully married to her first husband. That the wife may have believed that the records of that marriage no longer existed did not affect the fact that she was lawfully married. Even if she believed that the absence of records meant she was not, that is of no relevance, as under Philippine law she remained lawfully married.

The husband’s state of knowledge at the time was of course derived from what his wife told him, but there was insufficient evidence to conclude whether the husband genuinely believed what he was told and that the wife’s earlier ‘marriage’ was no more than an informal celebration or whether he turned a blind eye to a suspicion that the wife may have remained lawfully married.

Having reached the conclusion that the marriage in March 2005 would not constitute a valid marriage under Philippine law and thus on the lex loci celebrationis principles it would not be a marriage that would be capable of recognition in English law, Williams J ruled that it could not be a marriage that would be capable of being dissolved pursuant to MCA 1973, s 1. It would however be a ‘marriage’ that could be subject to a decree of nullity pursuant to MCA 1973, s 11(b). Williams J concluded that the husband’s unattractive position on the divorce did not on its own require him to consider the public policy issue and he duly granted the decree of nullity.

This article was first published by LexisPSL and is reproduced with permission.

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