M-T (Petitioner) v T
| Jurisdiction | England & Wales |
| Judge | Mr Justice Charles,Charles J |
| Judgment Date | 15 October 2013 |
| Neutral Citation | [2013] EWHC 2061 (Fam) |
| Date | 15 October 2013 |
| Court | Family Division |
| Docket Number | Case No: FD03D02234 & FD04DO5733 & FD09P02802 |
[2013] EWHC 2061 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Charles
Case No: FD03D02234 & FD04DO5733 & FD09P02802
Timothy Scott QC (instructed by Divorce and Family Law Practice LPP) for the Petitioner
Adedamola Aderemi (instructed by K & S @ Law) for the Respondent
Hearing dates: 19 to 21 November 2012
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.
This judgment is being handed down in private. The judge hereby gives leave for it to be reported.
The judgment is being distributed on the strict understanding that so far as is practicable in any report the identities of the children referred to in it are not disclosed.
Introduction
This long-running litigation has involved divorce and ancillary relief proceedings (the Divorce Proceedings) and proceedings under Schedule 1 of the Children Act (the Children's Proceedings). This judgment relates to the Divorce Proceedings. I indicated that I would not deliver it until issues relating to security for payments for the children in the Children's Proceedings had been concluded or appropriately advanced. They have now been concluded.
The Divorce Proceedings came back before me at the end of 2012 to address a number of issues. In broad terms the Petitioner commenced proceedings in this jurisdiction by a petition dated 19 February 2003 (the 2003 Petition) against the Respondent asserting that she and the Respondent were married at a ceremony of marriage that took place in Nigeria on 22 December 1993 pursuant to native law and custom (the Disputed 1993 Marriage). The Respondent disputed the jurisdiction of this court and denied the existence of the Disputed 1993 Marriage. His position was that the ceremony of marriage asserted by the Petitioner simply did not take place. He also asserted that in 1974 he had entered into a statutory marriage in Nigeria with another woman (GT) and that as that marriage had not been dissolved he did not have the capacity to enter into subsequent polygamous marriages.
So, at the heart of the disputes between the parties arising on the 2003 Petition was the assertion by the Petitioner that the parties had entered into a ceremony of marriage according to native law and custom on 22 December 1993 and the Respondent's assertion that no ceremony had taken place on that day. As between them this was a "black and white" issue of fact. Both of them could not be right and it is very difficult to see how the difference between them could be explained by some misunderstanding. Indeed, no such explanation has been advanced and the reality has always been that one of the parties was knowingly advancing a false assertion about the existence of the Disputed 1993 Marriage.
During the proceedings there have been a number of allegations and findings of dishonesty and culpable behaviour but, regularly and without demur prior to its resolution, the stark difference of fact relating to the Disputed 1993 Marriage (namely was there or was there not a ceremony on that day) has been referred to by both parties and the court as the "big lie" because of its fundamental importance and its obvious impact on the other issues relating to the conduct of the parties and their rival contentions.
On 29th of June 2004, the Petitioner amended the 1993 Petition (the Amended 2003 Petition). As a result of the amendment she added in the alternative that by the same ceremony on 22 December 1993 the parties purported to celebrate a marriage or underwent a ceremony of marriage by virtue of native law and custom. She also added a claim that the parties were married by cohabitation and repute and an alternative claim for a decree of nullity if the Respondent should prove that he entered into a statutory marriage with GT which was still subsisting in 1993.
Also on 29 June 2004, the Petitioner issued a further petition (the 2004 Petition) based on an assertion that on 16 March 2002 she and the Respondent were lawfully married in Nigeria by virtue of native law and custom (the Disputed 2002 Marriage). In addition, she sought an order dissolving that marriage but did not seek in the alternative a decree of nullity. As the Disputed 2002 Marriage was within a year of the 2003 Petition it was not open to her to add an alternative based on it to the 2003 Petition.
In all three petitions the Petitioner sought orders relating to the twin daughters of the parties and ancillary relief.
In March 2003, the Petitioner sought and obtained a freezing order against the Respondent. She also sought and obtained a mirror order in Jersey. Later, some variations were made to those orders.
On 28 May 2003, District Judge Black made an order for maintenance pending suit in the 1993 Petition. That order provided that from 28 April 2003 the Respondent was to pay to the Petitioner £25,000 per month split as to £10,000 payable to the Petitioner and £15,000 payable to her solicitors in respect of costs.
On 1 December 2003, Singer J heard the Respondent's application to discharge the maintenance pending suit order. He refused that application and increased the sums to be paid from the original date (24 April 2003) to £39,000 per month split as to £14,000 payable to the Petitioner and £25,000 payable to her solicitors for costs.
Prior to 1 December 2003, further applications and orders to those mentioned above had been made both in this country and in Jersey. A number of applications and orders followed during 2004 and the early part of 2005 and many of these related to the enforcement of the order for maintenance pending suit.
Severe criticisms of the Respondent's conduct in the Divorce Proceedings have been made by me and other judges and have resulted in a number of orders for costs being made against him.
In 2005, I heard over a number of days a number of preliminary issues relating to jurisdiction and other matters in the Divorce Proceedings. My judgment (my 2005 judgment) is a lengthy one and in it I set out relevant history and make a number of findings of fact. I had heard evidence from both the parties and my findings include adverse findings relating to the credibility of both of them. On 9 March 2005, I made an order:
i) declaring that this court had jurisdiction to hear the amended 2003 Petition and the 2004 Petition,
ii) staying both sets of proceedings pending disposal of the proceedings in Nigeria referred to in Schedule 1 to the order; provided that the said stay was subject to the terms and undertakings set out in Schedule 2 to the order,
iii) discharging the order for maintenance pending suit made on 28 May 2003 as subsequently varied on 4 December 2003, and
iv) adjourning generally with liberty to restore all applications in relation to the costs of these proceedings (save in so far as orders had already been made).
Schedule 1 to that order identified two sets of proceedings in Nigeria and contained the following proviso:
" Provided that this order is intended (so far as possible) to encourage the expeditious determination in Nigeria of all issues relating to the personal status and/or the dissolution or annulment of any marriage or purported marriage between [GT] and [ the Respondent ] herein; and between the Petitioner herein and the Respondent herein on the other hand. Accordingly nothing in this order is intended to inhibit the Petitioner or the Respondent herein or [GT] from making such applications to amend any pleading or seek any relief within the said two sets of proceedings or from commencing fresh proceedings in the Lagos High Court (i.e. a new petition for divorce or annulment as the case may be) as may tend to lead to that end. "
As that proviso indicates, and as explained in my 2005 judgment, the purpose of the stay was to enable:
i) the parties to put before the Nigerian courts all issues relating to whether, and if so when, they were married and the effect of any marriage, or marriage ceremony, based on custom and practice having regard to the existence of a statutory marriage between GT and the Respondent, and so to enable
ii) the Nigerian courts to (a) decide whether the parties were married, the effect of any marriage and their status during any such marriage, and (b) to make appropriate orders or declarations terminating any marriage.
The purpose and result of this was therefore that this court directed that the Nigerian courts were to decide the disputed issue of fact relating to the existence of the Disputed 1993 and 2002 Marriages and the marital status of the parties on the basis of those findings
In March 2005, I continued the freezing orders.
The Nigerian proceedings took some time and whilst they continued the Petitioner made some applications to set aside the stay, which I refused.
In 2005, the Petitioner launched the Children's Proceedings under Schedule 1 of the Children Act 1989 for financial provision to be made for the children. In those proceedings the Respondent was ordered to make payments for the children and in respect of the costs of the proceedings. Those proceedings were hard fought both before and after the making of interim and later secured orders for the benefit of the children. The judgments given in those proceedings contain a number of findings that are very critical of the manner in which the Respondent and his advisers conducted the litigation and complied with orders of the court. A number of orders for costs were made against the Respondent.
In April 2008, Justice Oyefeso delivered a judgment in respect of proceedings in the High Court of Lagos in which the...
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