Court of Appeal
| Published date | 01 April 2002 |
| DOI | 10.1177/002201830206600204 |
| Date | 01 April 2002 |
| Subject Matter | Court of Appeal |
Court
of
Appeal
Consequences of Bigamy
RampalvRampal(No.2) [2001] 3 WLR 795
APakistani living in Pakistan entered into amarriage arranged by
the
families. The wife became pregnant,
but
the parties became estranged
and
by the time
the
daughter was born, divorce proceedings were in
progress
and
he never saw his daughter or made
any
contribution to
her
upkeep. He left for England before a decree of divorce
had
been
ob-
tained, but, on arrival he answered an advertisement inserted in a news-
paper by a
woman
of 37 years of age seeking the companionship of a
bachelor. He did
not
reveal
that
he was married and they began to live
together
and
were married. She became pregnant,
but
the
partnership
fell apart
and
he began proceedings for divorce on the ground of
her
unreasonable behaviour. She cross-claimed for divorce on the ground
of his unreasonable behaviour
and
conceded
that
the marriage
had
irretrievably broken down. Adecree of divorce was granted on the basis
of
her
cross-claim. The husband
then
claimed ancillary relief
under
s. 23
of the Matrimonial Causes Act 1973. To counter this move, the wife
went
back to the court
and
asked for the decree of divorce to be set aside,
on the ground that the marriage was bigamous, to the knowledge of the
husband,
who
was aware of
the
fact that the English ceremony
had
taken place before the marriage in Pakistan
had
been terminated. She
asserted
that
she
had
learnt of this fact only just before the last
round
of
proceedings. She asked instead for a decree of nullity which was granted.
On the husband's claim for ancillary relief the judge rejected the
wife's claim
that
she had learnt of the bigamous nature of
her
marriage
only after the ceremony
had
taken place. Hisopinion was
that
it was the
wife
who
had
insisted on the ceremony, knowing full well
that
he was
already married
and
that the English ceremony
had
taken place before
the termination of the Pakistani marriage. He was of the opinion
that
the
'wife' had insisted on the ceremony in order to gain 'respectability' in
the eyes of the Pakistani community in England where their child was
born, since (it would seem) the community looked askance at children
born outside marriage. This, he thought, was
why
the ceremony took
place even
though
both parties knew the marriage was bigamous. But
he held
none
the less that the husband could
not
proceed with his claim
for ancillary relief as he
knew
the marriage was bigamous.
The judge based his conclusion on the decisions in
Whitson
v
Whitson
[1995] 3 WLR 405 and ST
(formerly
J) vJ[1997] 3 WLR 126, which
decisions he read as laying down a rule of universal application
that
a
bigamist cannot rely on a marriage ceremony
to
found a claim for
ancillary relief
under
s. 23 of the 1973 Act. For the wife it was argued
that
there are no exceptions in those circumstances to the application of
the maxim ex turpi
causa
non oritur
actio.
The judge in the High Court
therefore held that the husband was barred from proceeding
under
s. 23
117
The Journal of Criminal Law
whether
the
wife was party to his false statement at
the
ceremony
or
not. From
that
decision,
the
husband
appealed to
the
Court of Appeal.
The Matrimonial Causes Act 1973, s. 23(2) (g) provides
that
as regards
the
exercise of the powers of
the
court to
award
ancillary relief
under
s. 23 in relation to a party to
the
marriage the court shall in particular
have regard to
'the
conduct of each of the parties, if
that
conduct is such
that
it would in
the
opinion of the court be inequitable to disregard it'.
On appeal,
the
husband
argued
that
the
decision in
Whitson
v
Whitson
(above) was based
on
its
own
facts
and
contained no rule of universal
application. That was the view of Ward LJ in
that
case
and
the
husband
submitted
that
the
Court of Appeal should adopt
that
view of this case,
in spite of the contrary opinion expressed by
other
members of the court
in
that
case. The wife argued
that
the
judge in the High Court was right
to hold
that
abigamist can
never
apply for ancillary relief in relation to
his 'marriage'.
HELD,
ALLOWING
THE
APPEAL,
the husband's claim should be re-
instated. Permission to appeal was refused.
Thorpe LJ (at 804, para. 27) stated
that
'where
an application to
invoke statutory entitlement arises
out
of a criminal act,
the
court
must
have regard to all
the
circumstances before deciding
whether
or
not
the
applicant is debarred'.
COMMENTARY
This is an
important
decision on
the
ambit of the principle of public
policy. Two opposing views have
been
expressed. One is
that
the
maxim
exturpi
causa
nonoritur
actio
expresses arule of universal application. The
other
is
that
the
commission of a wrong
which
is called a crime is
not
an
absolute
bar
to
the
bringing of proceedings based on it.
It
is
not
the
name
of the crime
but
the
nature
of
the
crime which
may
act as a bar to
proceedings. There is, for instance, adifference
between
an
element
which would make
the
'marriage' void per se (between persons of
the
same sex, for example)
and
cases in
which
the
vitiating
element
is
such
as
that
on this occasion. There are degrees of gravity of bigamy. How are
they
to be assessed, in determining
the
equity of allowing a claim for
ancillary relief to proceed?
It
is to be remarked
that
the
court did
not
think
that
the
Human
Rights Act 1998 altered
the
position of
the
domestic law since it is conceded
that
every legal system is entitled to
have a'strikeout' procedure to be used
when
public policy in the
interests of justice justifies
that
step.
Who
May
Represent
aSolicitor to Advise a
Person
in
Police
Custody?
R
(on
the
application
of
Thompson)
vChief
Constable
of
North
umbria
[2001] 4 All ER 364
A police officer
who
was a
member
of
the
Northumbria constabulary
was dismissed on
the
ground
that
he
had
made sexually discriminatory
llB
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