Rampal v Rampal
| Jurisdiction | England & Wales |
| Judge | THORPE LJ,ROBERT WALKER LJ,THE PRESIDENT |
| Judgment Date | 27 June 2001 |
| Neutral Citation | [2001] EWCA Civ 989 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B1/2000/3607 FAFMI |
| Date | 27 June 2001 |
[2001] EWCA Civ 989
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE FAMILY DIVISION
(MR STEPHEN BELLAMY QC)
Royal Courts of Justice
Strand, London WC2A 2LL
The President Lady Justice Butler-sloss
Lord Justice Thorpe and
lord Justice Robert Walker
B1/2000/3607 FAFMI
TIMOTHY SCOTT QC and CHRISTOPHER WAGSTAFFE (instructed by Messrs Bechelet Bivona of London WC1A 2AJ) appeared on behalf of the appellant.
ANDREW MOYLAN QC and MRS GUDRUN FAMA (instructed by Messrs Graham Whitworth & Co of Hounslow, Middx TW3 1NW) appeared on behalf of the respondent.
The story of the relationship and marriage between Mr and Mrs Rampal, who I will hereafter refer to as the husband and the wife, has been the subject of judgments of the Family Division delivered by Hogg J on 18 April 2000 and Mr Bellamy QC, sitting as a Deputy High Court Judge, on 17 November 2000. The first judgment is reported at [2000] 2 FLR 763 and the second judgment is the subject of the present appeal.
I record the story briefly, drawing on these two judgments and particularly the findings of fact made by Mr Bellamy. The husband came to England from India in 1964 and has lived here ever since. However he has visited India periodically and on 15 December 1972 entered into an arranged marriage there. It proved of short duration, although during a subsequent visit to India in 1974 the husband fathered a daughter whom he did not thereafter see or maintain. On 13 November 1981 the husband was divorced in India.
Meanwhile in 1973 the husband responded to an advertisement by which the wife sought a relationship with a single man. After a while the husband moved into the wife's home and she conceived a child. That was 1975, the wife was 37 years of age and the pregnancy was therefore towards the end of her opportunity for motherhood. Despite the fact that the father of the child that she was carrying had a wife in India, as she well knew, she suggested that they went through a ceremony of marriage since, within the Indian community in Britain, it was unthinkable for her to have a child out of wedlock. As a spinster the wife had no difficulty in arranging the ceremony, making use of the husband's passport upon which he was described as a bachelor. The ceremony took place in June 1975 and shortly thereafter their only child, a daughter, was born.
The family was reasonably prosperous. The family home in West London was acquired in joint names in 1982 and accounted for approximately £150,000 of the family assets amounting in all to about £200,000. The balance lay in insurance policies and shares.
The marriage broke down in about 1997 and on 23 April 1998 the husband petitioned for divorce on the grounds of the wife's unreasonable behaviour. In July she filed an answer and cross-petition, admitting irretrievable breakdown and herself seeking divorce on the grounds of unreasonable behaviour. In February 1999 the suit was compromised and a decree nisi was pronounced on the wife's cross-petition on 26 May 1999, made absolute on 18 July 1999. Between those two decrees the husband issued a claim for ancillary relief asserting that the wife had taken financial advantage of him. Certainly in 1998 the matrimonial home had been transferred into the wife's sole name in disputed circumstances. Faced with this challenge, on 20 October 1999 the wife issued an application for the two decrees to be set aside and for leave to file an amended answer seeking a decree of nullity on the grounds that the marriage of 20 June 1975 was bigamous and therefore void. In advancing that application the wife falsely asserted that she had no prior knowledge of the husband's first marriage (beyond suspicions allayed in 1983) and no proof until stumbling on documents on 4 September 1999.
At the hearing before Hogg J the factual issue as to the date of the wife's knowledge was not explored. Hogg J quite rightly granted the relief sought on the simple basis that the husband admitted that the dissolution of his first marriage post-dated the second ceremony. Of course the wife's ulterior purpose in seeking the decree of nullity was to bar the husband's application for ancillary relief in reliance on the decision of this court in Whiston v Whiston [1995] Fam 198. Having reviewed that authority as well as the later case of S-T (formerly J) v J [1998] Fam 103, Hogg J noted that there was an unresolved issue as to whether the wife was also 'guilty of being a secondary party to the offence of bigamy'. She concluded:
"There should in my view be a full investigation before myself or a judge of this court where, if necessary, following a fact finding exercise and a decision, the matter could be re-argued in the event of both parties being guilty of wilfully and knowingly entering into a bigamous marriage."
In the event the investigation was conducted not by Hogg J but by Mr
Bellamy.
Seemingly Mr Bellamy's only task was to determine whether the husband was truthful in maintaining that the wife had engineered the 1975 marriage with full knowledge of his status or whether the wife was truthful in asserting that the facts only became known to her on 4 September 1999. For Mr Bellamy recorded the following concession at page 3 of his judgment:
"Her counsel accepted the proposition of law as put forward by Mr Wagstaffe, that if the wife had the knowledge alleged, then the financial relief application of the husband should not be struck out."
To the same effect is the following passage at page 31:
"Mr Wagstaffe seeks to distinguish the case of Whiston, saying that there has been no deceit of an innocent party involved, because there was full knowledge on the part of the wife. This is a submission which counsel conceded without argument. Her submissions to me on behalf of the wife were based entirely on the facts and the findings of fact which the court should make and on credibility and not on the law. I have therefore not had what I would regard as full argument on this point."
Mr Bellamy heard much evidence not only from the parties but also from their daughter and from other witnesses. Despite the fact that he rejected the wife's case comprehensively and despite the fact that he had not heard full argument, nevertheless he went on to hold that the effect of the two decisions of this court to which I have referred was to debar the husband from applying for ancillary relief despite the fact that the wife was a prominent party, effectively inducing the bigamous marriage. Whether he was right so to hold is the sole issue in this appeal.
The appeal has been skilfully and extensively argued by Mr Scott QC for the husband and Mr Moylan QC for the wife. Mr Scott submits, in barest summary, that Whiston is a case decided on its extreme facts and does not lay down the universal rule debarring anyone guilty of the crime of bigamy. His fallback submission is that the advent of the Human Rights Act 1998 requires the court to revisit the decision in Whiston v Whiston. For were it applied against his client it would constitute a denial of his rights under Article 6. Mr Moylan asserts that Whiston v Whiston is clear authority for the proposition that anyone who knowingly contracts a bigamous marriage is debarred from claiming ancillary relief. Otherwise such a person would be in a better position than another long-term cohabitant who had not falsely acquired marital status. Mr Moylan also placed great emphasis upon the decision of the House of Lords in Tinsley v Milligan [1994] 1 AC 340 and particularly the speech of Lord Goff rejecting the public conscience test favoured by the majority in the Court of Appeal.
In order to resolve these submissions it is in my judgment necessary to look with great care at the two recent decisions of this court which are directly in point. I do not myself obtain any assistance from the authority of Tinsley v Milligan which I conceive to be completely authoritative only in the fields of contract and tort where the doctrine of ex turpi causa is invoked. In my opinion it is clear that a less rigid rule is applied to statutory claims and applications founded on a criminal act. Support for that proposition is to be found in the judgment of Donaldson LJ in Reg v Secretary of State for the Home DepartmentEx Parte Puttick [1981] 1 QB 767. He said at 772H:
"There is much authority on the circumstances in which the courts will refuse to enforce contractual rights upon grounds of public policy, but I doubt whether this is directly applicable where the right is conferred and the concomitant duty is imposed by statute."
In this field of statutory claims we were also referred to R v Chief National Insurance Commissioner Ex Parte Connor [1981] QB 758,Re Royse (Deceased) [1985] 1 Ch 22 and Re H (Deceased) [1990] 1 FLR 441. In the case of Connor there is an authoritative passage in the judgment of Lord Lane LCJ at pages 765–6. He first rejected the submission that the rules of public policy did not apply to a self-contained modern Act. He said:
"The fact that there is no specific mention in the act of disentitlement so far as the widow is concerned if she were to commit this sort of offence and so become a widow is merely an indication, as I see it, that the draftsman realised perfectly well that he was drawing this act against the background of the law as it stood at the time."
He then considered a second proposition drawn from the decision in Gray v Barr [1971] 2 QB 554 that it is not every type of crime which operates so as to cause public policy to...
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