Risk (otherwise Yerburgh) v Risk
| Jurisdiction | England & Wales |
| Date | 1950 |
| Year | 1950 |
| Court | Probate, Divorce and Admiralty Division |
Husband and wife - Nullity - Moslem ceremony in Egypt - Provision in contract for polygamy - Wife domiciled in England before ceremony - Validity of marriage -
The matrimonial law of England recognizes no marriage other than one which is monogamous; and notwithstanding the extension of jurisdiction effected by the Law Reform (Miscellaneous Provisions) Act, 1949, a petitioner cannot come to the court in this country either to enforce his rights under, or to seek relief from, a polygamous marriage.
Where, therefore, an Englishwoman domiciled in England went through a Moslem ceremony of marriage in Egypt with an Egyptian domiciled in that country, and where by the marriage contract it was stipulated that the husband might take two, three or four wives at one and the same time, and the wife (after more than three years' residence in this country) petitioned for a decree of nullity on the ground that she was incapable at the time of the ceremony of contracting a polygamous marriage and that the marriage was therefore null and void,
Held, that the marriage was not one which entitled the wife to come to the court for matrimonial relief, and that the court therefore had no jurisdiction to grant her a decree.
PETITION for nullity of marriage.
The wife by her petition prayed for a decree of nullity on the ground that her marriage to an Egyptian was an unlawful polygamous union. At the time of the ceremony the husband, Abdul Hamid Mustafa Risk, was domiciled in Egypt; the wife was an English subject, aged twenty-one years and domiciled in England. The ceremony was performed at the Karmuz religious court in Alexandria in 1938, and constituted a valid marriage according to the law of Egypt.
It was stipulated in the marriage contract, inter alia, that the husband could have two, three or four wives at the same time and that he could divorce his wife (the petitioner) at will. He had not in fact taken mother wife, nor sought a divorce.
In 1946, the wife left the husband because of his alleged ill-treatment of her, and returned to England, with the only child of the union; and she remained ordinarily resident in this country until the petition was presented in April, 1950. In her petition she stated that she was a Christian and that she was unaware of some of the conditions of the marriage contract until just after the ceremony. It was stated that she and the husband were domiciled in Egypt.
The petition was undefended.
William Latey, K.C. for the wife. The court's jurisdiction to decree nullity of marriage is just the same as under the Ecclesiastical Court procedure; and if there were any doubt as to the petitioner's right to a decree because the respondent is and always has been domiciled in Egypt she is entitled to come to the court for this remedy under s. 1 of the Law Reform (Miscellaneous Provisions) Act, 1949F1, having been ordinarily resident in England for three years immediately preceding the date of the petition. There being no doubt about the polygamous nature of this union, it comes within the description of Lord Penzance in Hyde v. Hyde and WoodmanseeF2, as being no marriage as understood in Christendom or permitted by the law of England. In that case the husband who had entered into what was called a...
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