Gerlie Ortiz Padero-Mernagh v Rodger Darrel Mernagh
| Jurisdiction | England & Wales |
| Judge | Mr Justice Williams |
| Judgment Date | 03 April 2020 |
| Neutral Citation | [2020] EWFC 27 |
| Date | 03 April 2020 |
| Docket Number | Case No: LV18D06534 |
| Court | Family Court |
[2020] EWFC 27
IN THE FAMILY COURT
(Sitting remotely)
Leeds Family Hearing Centre
Coverdale House, East Parade
Leeds, LS1 2BH
Mr Justice Williams
Case No: LV18D06534
and
The Petitioner: In person.
The Respondent: In person
Simon P G Murray (instructed by the Government Legal Department) on behalf of the Queen's Proctor
Hearing dates: 30 and 31 March 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
On 14 July 2018 the petitioner wife issued an application for divorce in the Liverpool Family Court. The marriage in respect of which she sought a dissolution is certified to have taken place on 21 March 2005 in the Philippines.
On 27 July 2018 the respondent husband filed an Acknowledgement of Service and a ‘Reply/defence’. In those documents he stated that the marriage was bigamous in that he asserted that the wife remained married to a man called Rafael Gragasin and that the marriage ceremony in the Philippines on 21 March 2005 had failed to comply with Philippine law. The husband cross- petitioned for nullity and followed this up with a further document entitled ‘Application for cross petition of nullity’ which was filed with the court on 4 October 2018.
Both parties have in the main represented themselves throughout these proceedings. The wife is a nurse. She was represented at the first hearing but has since acted in person including at this the final hearing. The husband is or was a solicitor and is now retired.
When the petition came before the court on 21 January 2019 Deputy District Judge Greatorex gave directions for each party to file evidence. It was listed again on 25 March 2019 and one of the issues for that hearing was whether any expert evidence was required. At that hearing the mother's counsel raised a number of technical points in relation to the husband's failure to comply with the Family Procedure Rules in relation to his answer and cross petition. Although the order of 21 January 2019 does not expressly rule upon the technical points taken the content of the order indicates that the court accepted that the matter should proceed on the basis of a petition for divorce and a cross petition for nullity. All subsequent orders proceeded on the basis that the two live issues before the court were divorce and nullity.
On 25 March District Judge James gave further directions. Both the petitioner and the respondent were in person. Neither party made an application for a part 25 expert on Philippine family law but at some stage extracts from the Philippine civil code and the Philippine family code were filed with the court. On that order it is recorded that
i) the respondent asserts that the marriage is void ab initio on the basis that
a) the petitioner had contracted a previous undissolved marriage and
b) the marriage certificate indicates a ceremony in circumstances other than those set out by the petitioner in her evidence, and
c) in consequence of the venue shown on the certificate being unauthorised for marriage, the marriage is void.
ii) The evidence the respondent cites in support of i) a) is that the effect of Philippine law is such that the use of the father's surname on Ralph's birth certificate is conclusive evidence that Ralph's father was married to the petitioner at the date of Ralph's birth and that the petitioner has previously told the respondent of a ceremony she went through with Ralph's father at her house, which the respondent asserts amounted to a valid marriage. The petitioner admits that a ceremony took place but denies that it constituted a marriage valid in the law of the Philippines.
iii) The evidence the respondent cites in support of i) b) is the alleged discrepancy on the marriage certificate and information derived from and documented in the petitioner's application to enter the UK as the respondent spouse
iv) in relation to i) c) the ceremony between the petitioner and the respondent took place, it is agreed, at a hotel authorised for marriages but the certificate refers to it taking place at the offices of the official conducting the same.
On 6 June 2019 HH J Hayes QC gave further directions. The husband attended in person at the Family Court in Leeds but the wife in error attended at the Huddersfield Family Court. The order made on 6 June 2019 also records the husband's case. One of the recitals notes that the husband took issue with part of the recital on the order of 25 March insofar as it appeared to state that the husband accepted that Casa Milan was an authorised marriage venue. The judge gave directions for the Home Office to disclose relevant information relating to applications made to the Home Office in relation to the wife and Ralph. HHJ Hayes QC directed that the proceedings be transferred to the High Court; I believe in fact this was intended to be an allocation to be heard by a judge of High Court level. He listed for directions before Mr Justice Cobb on 8 July 2019 and for final hearing before Mr Justice Cobb on the 15 th to 17 th of October 2019.
On 8 July 2019 Mr Justice Cobb gave directions and listed the case to be heard before me on 11 November.
The matter was listed for final hearing before me on 11 November 2019 and I adjourned that hearing and made directions, as I did not consider that the case was ready for final determination. The recitals to the order are as follows
Pursuant to section 8 (1) (a) Matrimonial Causes Act 1973 the Court thinking it fit so to do, directs that the papers identified in the Index attached to this order be sent to the Queen's Proctor to argue various questions which the court considers it both expedient and necessary to have fully argued in relation to a Petition for Divorce issued by the Petitioner Wife. The questions are
A. Is the marriage of the parties undertaken in the Philippines on 21st March 2005 valid according to the law of the Philippines in particular having regard to
a. What effect under Philippine law does the inaccurate recording of the location of the marriage ceremony on the Marriage Certificate have,
b. What effect under Philippine law does the previous ‘1994 marriage’ of the Petitioner have on the validity of the 2005 marriage? Are there any circumstances which show that either
i. The 2005 marriage was not a valid marriage under Philippine law at the time it was undertaken, or
ii. The 2005 marriage had become invalid or otherwise come to an end?
c. Are there any other matters of Philippine law which otherwise would affect the validity of the 2005 marriage?
B. If the 2005 marriage is void or voidable does this court have jurisdiction to grant a decree of nullity in relation to it or can that only be undertaken in the courts of the Philippines?
C. As a matter of English law is the husband precluded from arguing the validity of the marriage in the light of the submissions he made to the UK Visa Authorities?
D. In the event that the court concludes that either of the parties has either produced altered or forged documents or that they have made false submissions to the Home Office in relation to visa applications in relation to the validity of the marriage what approach should the court take to referring that matter to either the Home Office or the Attorney-General to consider whether any further steps should be taken?
And upon the court on the evidence currently before it having determined that it is necessary in order to justly determine the cross petition is to have evidence of the law of the Philippines relating to the validity of the 1994 and 2005 marriages.
I gave directions as to the filing of further statements from the wife and from the husband. Neither filed any further evidence. I also provided for the Queen's Proctor to apply for further directions including in relation to expert evidence on the law of the Philippines. It seemed clear to me from my involvement on 11 November 2019 that the prospect of the parties instructing a single joint expert on Philippine law was not viable given they were both acting in person and of limited means. There was a considerable delay in the process of involving the Queen's Proctor, my order coinciding with the final stages of the Parliamentary process relating to the U.K.'s exit from the European Union, the general election in December 2019 and the subsequent resumption of Parliamentary processes leading to the passage of the European Union (Withdrawal Agreement) Act 2020. Combined with some uncertainty as to the scope of the court's powers pursuant to section 8(1)(a) MCA 1973 this meant that it was only in March 2020 that the Attorney General's office confirmed that the Queen's Proctor had been instructed to make submissions as directed but that it was a matter for the parties to address the question of expert evidence on the law of the Philippines.
This Hearing
The order of 11 November 2019 originally provided for a three-day hearing which was expected to take place at the Family Court sitting in Leeds. That was duly listed for 30 March 2020. The development of the coronavirus pandemic intervened. The President of the Family Division issued ‘ COVID 19: National Guidance for the Family Court 19 th March 2020’. This was followed by the directions from the Lord Chief Justice on 24 February 2020 which stated that ‘ No hearings which require people to attend are to take...
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...Hussain v Parveen (The Queen's Proctor Intervening) [2022] Q FLR 823; Padero-Mernagh v Mernagh (Divorce: Nullity: Remote Hearing) [2020] 2 FLR 585; M v P (The Queen's Proctor Intervening) [2019] 2 FLR 813. It is not necessary for me to burden this judgment with any discussion of those case......