Hudson v Leigh (Note) [Family Division]
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE BODEY |
| Judgment Date | 05 June 2009 |
| Neutral Citation | [2009] EWHC 1306 (Fam) |
| Docket Number | Case No: FD08D00383 |
| Court | Family Division |
| Date | 05 June 2009 |
[2009] EWHC 1306 (Fam)
Before: The Honourable Mr Justice Bodey
Case No: FD08D00383
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mr Le Gryce QC & Miss Bailey-Harris for the Claimant
Mr Mostyn QC & Mr Shaw for the Defendant
APPROVED JUDGMENT
A. INTRODUCTORY
By these consolidated proceedings, Robert Leigh (“Mr Leigh”) petitions for a declaration that a ceremony which took place in Cape Town on 23 rd January 2004 did not effect a marriage between himself and Gillian Hudson (“Miss Hudson”). Miss Hudson asserts to the contrary that the ceremony in question did constitute a valid marriage and she prays for a divorce from Mr Leigh on the basis of his alleged unreasonable behaviour, which he denies. Alternatively she seeks a decree of nullity on the basis of non-compliance with the formal requirements of South African Law.
The above issues are driven by money. If there was no marriage, then Miss Hudson is unable to claim ancillary relief for herself as against Mr Leigh, who is a man of some wealth. If however there was a marriage, whether valid or void, then she can do so once having obtained the appropriate decree.
GH has been represented by Mr Le Gryce QC with Miss Baily-Harris and Mr Leigh by Mr Mostyn QC with Mr Shaw. Both sides have lodged helpful opening presentations, which have been amplified following the oral evidence placed before me.
One of the key issues in contention is as to whether or not there exists in English law a category or concept of a 'non-marriage', or a 'non-existent marriage' (an event with marital qualities, but which fails even to achieve the status of a void or voidable marriage.) Mr Le Gryce maintains that there does not, and he submits that certain reported cases recognising such a juridical entity are wrongly decided. Mr Mostyn describes that submission as 'nonsense' and places reliance on those cases.
Mr Le Gryce further submits that the Court cannot step outside the statutory bounds of the nullity provisions of Section 11 and 12 of the Matrimonial Causes Act 1973 by making any declaration in the inherent jurisdiction of the Court, as to do so would offend certain provisions of the Family Law Act 1986. Mr Mostyn disagrees and maintains that a declaration can and should be made that no marriage was ever effected here, not even a void one.
This judgment could have been shorter than it is. However this is a matter of status and, in deference to the well-researched and very differing arguments made to me, it is right go into rather more depth than might have been the case.
B. THE FACTUAL BACKGROUND
Apparent common ground.
Both parties are English, Miss Hudson being 43 and L being 49. Mr Leigh has lived in England throughout, although he has a fine second home in Cape Town, South Africa. They had a relationship from about 1992 onwards, including between about 1996 and 2003 when Miss Hudson was living mainly in South Africa. In June 2001, she gave birth to the parties' daughter there and in the summer of 2003, the parties became engaged.
It is common ground that the parties' beliefs of a religious nature could not have been more different. Miss Hudson is a devout Christian; whereas Mr Leigh is described in his Counsel's Opening presentation as 'an atheist Jew'. She wished to have a religious marriage ceremony; he did not. She would only have regarded herself as properly married by way of a religious ceremony; he, only by way of a ceremony in a Register Office.
Those differing beliefs presented the parties with a considerable difficulty, which came to be resolved as follows. During part of her time spent in South Africa, Miss Hudson had attended at a particular church, of which the Minister, a Reverend B, was authorised to officiate at ceremonies of marriage. The parties therefore agreed that they would approach him to see if he would conduct a religious ceremony on the roof terrace of Mr Leigh's Cape Town home (avoiding from Mr Leigh's point of view the need for a ceremony in a church) which would be followed by a civil ceremony at a register office in England, later fixed for 6.3.04. That way they planned that the beliefs of each of them would be catered for.
Miss Hudson puts it this way in her affidavit on 17.8.07: “… it was our mutual intention that the later civil ceremony would register our marriage. That is not to say that I believed that the vows we made in the religious ceremony [in Cape Town] were to have no meaning: to me; it was of the utmost importance that we be married in the eyes of God. We met with Rev B who was to conduct the religious ceremony in South Africa in advance of the same and we agreed a form of wording for the ceremony which we believed would not result in a registable marriage at this time. In summary, we agreed with him that he would use the usual order of service, but omit the words “no lawful impediment”, “your lawful wife”, “your lawful husband” and “have been lawfully married”. In preparing for the religious ceremony, we also consciously failed to comply with certain formalities which are usually required for a marriage to take place, such as producing our identity documents in advance of the wedding”.
Mr Leigh says in his affidavit in reply: “… because of my lack of religious beliefs, I wanted to be legally married in a civil ceremony. However, because of her positive [religious] beliefs, Miss Hudson wished for us to participate in some form of religious ceremony. I also wanted to be legally married in England, with my family present as most of them could not fly as far as South Africa. After discussion it was agreed between Miss Hudson and I that we would make enquiries to see whether it was possible to have a religious, but not legally binding, ceremony in Cape Town and then subsequently a civil legally binding marriage ceremony in England.” Miss Hudson responds in her second affidavit: “… I think only a handful of guests were aware that it was not intended that the marriage ceremony in Cape Town should have legal significance, but serve as one of two ceremonies, at the second of which we would sign a register.”
On 14.1.04, nine days before that ceremony, a Miss V (a South African attorney instructed on Mr Leigh's behalf to draft a pre-nuptial agreement) wrote to his English solicitors saying that she had been in touch with Rev B and continuing: “… I took the liberty of advising him that the parties did not want a marriage ceremony in South Africa, as they would be getting married in the UK and he confirmed that this was what he understood the case to be. He says that he will not be using the usual formula for a marriage ceremony, but that the service will be in the nature of a blessing ceremony prior to the actual marriage ceremony”.
The pre-nuptial agreement just mentioned was signed by the parties at Mr Leigh's instigation on the morning of the ceremony on 23.1.04 and it recites that both parties had received separate and independent legal advice. That was correct, although the legal advice to Miss Hudson was somewhat hurried and took place over the telephone, as she was in South Africa and her solicitors were in England. Paragraph 1 of the agreement states: “… This Deed is made in contemplation of and is conditional upon the intended marriage of Mr Leigh and Miss Hudson on 6 th March 2004. It is recorded that the parties intend to participate in a religious ceremony in Cape Town on 23.1.04”. On the face of it, that document encapsulates the perceived relative significance of the two ceremonies, the actual marriage being intended to be effected by the English ceremony on 6.3.04.
That ceremony intended for 6.3.04 was booked by the parties to take place at Chiswick House, an historic building in West London authorised for the celebration of civil marriages. It is common ground that they sent out invitations for it to their friends and relations shortly after 5.1.04, i.e. well before the Cape Town ceremony on 23.1.04.
Unhappily, as between that ceremony in South Africa and the intended ceremony in England, the relationship between the parties broke down and the proposed ceremony at Chiswick House was cancelled. But for that, the parties would have been married by the English ceremony and these proceedings would not have been constituted as they are.
Rev B has recently given a statement about his role in the Cape Town ceremony. He agrees with the parties that they contacted him in November 2003 and explained to him their differing religious views. He says they asked “… whether it would be possible for me to conduct a religious ceremony only, as they wanted to get legally married in England. I recall initially telling them that they would need to produce their identity documents or passports, but once I understood they only wanted a form of religious ceremony and would not be signing the Marriage Register, I said that I did not need them as this was not intended as a legal ceremony.”
He then refers to a meeting which he had with both parties on 22.1.04, the day before the ceremony, and continues: “… we discussed and agreed the form of ceremony for the next day. I made the point that I had made once before, that in my view, since they were not signing the register after the ceremony, they would not be legally married anyway. I was prepared to go through a religious ceremony, but I knew that it was not Miss Hudson and Mr Leigh's intentions that I marry them at law. I was aware that they were planning to marry at a civil ceremony in London in March 2004 and we discussed this again during our meeting … I conducted the ceremony on the roof of Mr Leigh's house, omitting parts of the usual formula, to comply with Mr Leigh and Miss Hudson's expressed wishes”.
In cross...
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