N v D

By her application for a declaration of marital status under section 55(1)(a) of the Family Law Act 1986, N claims that she was married to D in a customary marriage ceremony in Nigeria in January 2005. D accepts that an event took place but denies that it amounted to a marriage.

Having considered extensive written evidence, heard from the couple and from eight family members (four on each side), and studied over 100 photographs of the disputed event, my conclusion is that N’s application succeeds. I am satisfied that she and D and their families participated in a customary marriage ceremony on 4 January 2005 in N’s tribal village in Enugu State and that, to use the words of the statute, this was at its inception a valid marriage. I find that N’s account and that of her witnesses is fundamentally truthful and I reject the accounts given by D and his witnesses where they conflict on any decisive matter.

Since customary marriage is a valid form of marriage in Nigeria, the marriage is recognised under English law. It is a peculiarity of the case that neither party realised this until recently. That, however, does not alter the outcome, as I shall explain below.

My findings of fact are made on the balance of probabilities, the burden of proving a fact being on the party that alleges it. Where I describe an event as having happened, that represents my finding. I also remind myself that lies may be told for many reasons and the fact that a person lies about one thing does not mean that they are not telling the truth about another.

N and D are 33 and 34 years old respectively. They are Nigerian but have lived in England since childhood. N is Igbo and D is Yoruba. They both come from families of high standing. They both came to live in England at around seven years old. Since then, England has been their home but each of them has maintained significant ties with Nigeria and has returned there fairly regularly. N’s Nigerian family is based in her tribal village, while D’s family is more to be found in Lagos. Both families are practising Christians.

The parties’ relationship as a couple, which both describe as having been up and down, began in 2002 and ended in 2011. They have four children, born between 2003 and 2009. From 2004 onwards they lived at the address now occupied by N and the children.

N herself is the oldest of three children. Her siblings, sister E and brother A, also live in London. Her mother was divorced from her father in 2005, but remained on good terms with her father, who lives in the village with a large number of his brothers and sisters. His eldest brother is the tribal chief, whose eldest son J gave evidence, as did N's mother and siblings. N’s father visited London from time to time in the early stages of the relationship between N and D, and he met D from time to time.

D is the sixth of seven children. His father died in 2001. His mother, who is adored by her children, lives in London. His older sister S is married to L. The second sister R lives in the United States. Brothers S and R are professional sportsmen, living in Europe. His sisters M and M2 live in London. A large number of aunts and uncles live in Nigeria, as does a prominent cousin of his late father, who lives in Nigeria and acted as senior male figure at the weddings of his sisters S and R and brothers S and R. Evidence was given at this hearing by sisters S, M and R (in her case by video-link) and by S’s husband L.

D’s mother unfortunately suffers from ill-health and participation in the proceedings as a live witness was not indicated. She has not made a sworn statement, but signed a letter in the presence of her pastor which states: "I am clear that D did not marry N and that I attended the party arranged in January 2005 in order to meet her father and other members of her family. I certainly didn't travel to Nigeria for D to get married." This is the only contribution from D’s mother, who was clearly a central figure at the event, and at a meeting between the families in 2002, described below.

Nor has any evidence been given by N’s father, who was also an important participant.

D is a professional footballer. He has played for a number of well-known clubs in England and also for the Nigerian national team. As a result he is a celebrity there.

Soon after the couple met in about April 2002. By around September, they had separated and N then discovered that she was pregnant. N decided to go ahead with the pregnancy, having spoken to her family and D’s mother and D then agreed to support her.

On 17 November 2002, a meeting took place at N’s family home. Those present were N, her mother, her sister E and her brother A. The visitors were D, his mother and his sisters S, M1 and M2. Food was offered to them and they were shown family photograph albums stretching back to N’s childhood. One photograph has been produced. It shows the couple sitting together at a table with a bowl of cultural food (garden egg, groundnut dip) in front of them. Both are informally dressed.

N says that this meeting was to get the two families together to show that she and D intended to be a family and were making a commitment to each other. It was not to discuss marriage. Her mother describes it as an acknowledgement that the families were seeking a union.

D and his sisters describe the visit as arising from the knowledge that N was pregnant. They visited in a group as an act of politeness.

An expert in Nigerian law, Professor Oba Nsugbe QC SAN, was jointly instructed in these proceedings. His report is thorough and helpful. It was not challenged by the parties and I accept his opinions. Speaking of introductions, he describes an event that is a common but not compulsory part of customary marriage and which can vary very widely in the degree of formality involved. There are no hard and fast rules. It involves the prospective groom in a prearranged visit to the family of the bride in the company of prominent members of his own family. They are received and welcomed in a reasonably formal way and a kola nut will be produced and shared: this fruit is revered in the Igbo community. However, the manner of the introduction will not affect the validity of the marriage.

I do not accept that the arrival of D and four members of his family at N’s family home was merely a social visit prompted by the expected arrival of a child. In the Nigerian and Christian traditions that these families respect, the expectation (but not the rule) is that children will be born into a marriage. The visit in November 2002 constituted an introduction between the two families that clothed the situation of the young people and the expected child with acceptance and respectability. Although introductions can be far more formal, this event was within the range of possibilities. It signalled that marriage was on the cards. The fact that it occurred over two years later is not significant: in the case of D’s sister S (who did not attend her own introduction in Lagos) the period between the two events was four or five years.

In reaching this conclusion, I accept that no male family member was present on D’s side and that kola nuts were not presented. This would not prevent the event from being regarded as an introduction, given the degree of latitude that exists. If I am wrong about this, the event was nevertheless one of equivalent significance to both families and the precise formulation does not affect the validity of the subsequent marriage.

I also accept that D was ambivalent about the idea of marriage but by his actions he showed an acceptance of responsibility and a commitment to the relationship and to the expected child. He is not the only young man to have felt pressure to marry from a pregnant partner and the older generation. He is not the only young man to have done the decent thing.

During their relationship, N was often referred to as D’s wife, socially and in the press. This does not take matters much further. They were living as a family and people, including journalists, can make assumptions. D is not the sort of person who would have caused offence by needlessly challenging the description.

During her evidence, N produced a diamond ring that she said was given to her by D. He had proposed to her and given her a simple engagement ring at an early stage in their relationship, but this was lost and the diamond ring was a replacement. It was bought when D was in Dubai with his team. D says that he never bought a ring until a holiday in Barbados in 2009, at a time when he and N were getting on well and were considering marriage.

I make no findings about the issue of a proposal and a ring. While there was nothing particularly improbable in N’s account, the issue was not mentioned in her written evidence and it arose for the first time when she was in the witness box. There is simply not enough information to allow a reliable conclusion to be reached. As I am clear that the prospect of a marriage had been in the air from 2002 onwards, the timing of a proposal and the gift of a ring does not significantly alter the overall picture. These are traditions associated with a "white" wedding and it is clear that that route was not under active consideration until much later.

The parties’ first child was born in June 2003 and their second child was born in September 2004. They were given D’s surname at birth, but this was subsequently changed to a double-barrelled surname including N’s surname. This was because N experienced difficulties travelling internationally with a different name from the children. When the third and fourth children were born, they were also given the double-barrelled name.

The arrival of the second child created a renewed focus on the parents' status. A major event was planned for 4 January 2005 in N’s tribal village. The arrangements were carried forward by N’s mother and her brother A in collaboration with family members living in Nigeria. They consulted with D’s mother, as indirectly evidenced by an e-mail written by N’s mother in December 2004 (see below).

Professor Nsugbe explains that Nigerian law recognises Christian marriage, statutory marriage, Islamic marriage and customary marriage. Of the last, he writes: "Customary marriage in Nigeria... is an institution with strong traditional roots and is indigenous to the culture of the people. It is a very significant event in the community. Amongst the Igbo, for example, it does not only involve the union of a man and a woman as husband and wife, it also embodies the coming together of two families.... Therefore, it is usually a very inclusive affair, involving often not just the immediate families of both bride and groom, but also extended family, community elders, and indeed the wider community members as well."

He advises that, while customary law may differ from tribe to tribe and between localities, the essential requirements of a valid marriage are largely consistent. Among the Igbo and Yoruba, the essential requirements are as follows:

Professor Nsugbe writes that

It is possible, and in some places compulsory, to register a customary marriage; however, the failure to do so does not affect the validity of the marriage. There is no suggestion that any registration took place in the present case.

I view the events on and around 4 January 2005 in the light of the advice and descriptions contained in Professor Nsugbe’s report.

N and D agree that neither of them was closely involved in the preparations. However, N describes how they both prepared a CD at home for giving out to the guests on the day. 50 to 100 copies were made. She has exhibited one battered example, retrieved from abroad. It is a hand-produced disk containing religious music. It has a picture of a couple on it beneath the legend:

It is agreed that D was a keen DJ and that he produced CDs of his own at home. N says that he produced these CDs and that she helped him to "stomp" the design onto them. She says, and I accept, that she did not know how to make and copy the recording but that D did.

D denied having anything to do with this CD or of ever seeing it until an example was produced in these proceedings. He says, and I accept, that it is an amateurish production compared to what he would normally design. He also says that he would not have produced something of this standard for his own wedding. He points to the incorrect date. N says that they noticed this afterwards but decided not to redo the whole lot. D said he could easily have done that with his equipment.

I accept N’s account of D’s involvement in the production of these CDs. In the first place, I believe her evidence about it. Moreover, as described below, the disks are seen in the photographs of the event. They are in my view significant pieces of evidence.

I also accept D’s account that these disks were not up to his usual standard. This may well reflect the fact that the event was one that he was participating in with less enthusiasm than N. There is no doubt that D, if left to his own devices, would not necessarily have chosen to marry. Again, he would not be the first person to have married with mixed feelings. However, what is important is whether consent was or was not given, not the degree of enthusiasm with which it was given. The existence of consent can be judged from the information about the event itself, described below.

I also accept the account of N’s mother that she prepared invitations that were sent to members of her family. They were not sent to D’s family. The existence of the invitations, which refer squarely to a traditional marriage, is clear evidence of what N’s family considered the event to be.

It is common ground that D bought matching gold outfits for himself and N to wear.

On 6 December 2004, N’s mother received an e-mail from her niece in Nigeria (N’s cousin N) that began

On 8 December, NN’s mother sent an e-mail to brother Afamdi.

Both mothers, N and her siblings, D’s sisters S, M and M2, and his brother-in-law L flew out to Nigeria from London around Christmas 2004 or shortly after.

The event was due to start at 2 pm on Tuesday 4 January. D did not arrive in the village until 10 am that day. He had played an away match on Monday, gone straight to Heathrow, flown to Lagos and then taken a further flight to Enugu, where he was met by his cousin D who drove with him to the village.

On Wednesday 5 January, D returned to London. His manager had given him leave to go abroad provided he was back by Thursday ahead of his next match on the Saturday. There is bound to be a question over whether a manager would release a key team member mid-season to attend an overseas party (even an important one) as opposed to attending his own wedding, but I have no evidence about that and draw no conclusions.

I do however reject D’s assertion that he would never get married mid-season, but would wait for the summer break. The wedding might well have happened during a summer break, but as it was, he agreed to the plans made by the families. The way it happened reflects his attitude to the event, not his participation in it. In his evidence, D described himself as headstrong. Having seen him give evidence, I find nothing surprising in his having made a flying visit to his own wedding.

The event on 4 January was a splendid affair. I find that there were no fewer than 500 people present, possibly more. Naturally the vast majority were on N’s side, being family in the widest sense, well-wishers and villagers. On D’s side there were the family members already named along with a number of family friends who had made the journey from Lagos.

The event took place in N’s family compound. No more than a very few days previously, the venue had hosted a huge commemoration for the 10^th anniversary of the death of her grandfather.

The witnesses that gave evidence described the events of the day as they remembered them. However, 10 years later, the most vivid evidence comes from the photographs. These will not by any means be all the recordings that were made: one of the photographs shows D’s cousin D with a video camera, but no footage has been produced. What we have are the contents of two albums, both produced by N.

The first album is clearly marked "Wedding Photo Album" on its front and spine. N says, and I accept, that this stood on a shelf in the living room of the family home. It contains 30 photographs, one of which is stuck to the outer front cover, and a copy of the wedding invitation. It shows signs of wear and tear and has clearly not been created for this litigation.

The second album contains 86 photographs and was produced at a late stage. Again, the album is clearly not a recent creation. N could not remember when or by whom it was created, but it came to her attention when she saw the children looking through it. The evidence now shows that these photographs were taken by D’s brother-in-law L or on his camera. The album comes from the family home, but it may not have been kept with the other album in the living room.

Courts are familiar with the vast amount of information that is stored electronically in visual or written records. E-mails, photographs, social media communications, text messages – all these are commonplace, not to say unavoidable. Nevertheless, the photographic evidence in this case has proved to be of unusual significance as a means of understanding the true nature of the events that took place on 4 January 2005.

The photographs in the first album show the following:

The photographs in the second album are even more telling:

My overall conclusion from this material is that it strongly and, I find, conclusively corroborates the evidence of N and her family. This was not just a party or an introduction. It was a formal and joyful celebration. Taken individually, the photographs contain details that are without exception highly suggestive of the form of customary marriage described by Professor Nsugbe and many of the photographs are inexplicable in any other way. Taken as a set, the collection is exactly what one would expect as the record of a wedding. The assiduous way in which different family groups are posed and photographed speaks of nothing less. The fact that the photographs found their way into the family home in two albums, one conspicuously labelled, speaks for itself.

The obvious presence of copies of the CD at the event is a particularly strong pointer. The possibility that these were openly circulating but that their significance went unnoticed by everyone in D’s family can be discounted.

D and his witnesses had no answer to the evidence in the photographic record. L, the main photographer, could not point to a single detail that was inconsistent with a wedding. Like D, he contended that any appearance of a wedding was misleading because of the absence of key family members on D’s side.

D argues that he would never have agreed to get married in the absence of his brothers and his sister R. He also urges that it would have been disrespectful for him to marry without involving his aunts and uncles from Lagos; moreover, that he would have invited the prominent cousin to play the part of senior male figure, as he had done at the two other family weddings.

When faced with the question "[D] would never have agreed to marry without his brothers and sister being there, would he?" N spontaneously replied: "Well he would because he did." In a similarly artless vein, N’s sister E replied to the suggestion that D did not know he was getting married: "How can someone who is getting married not know he is getting married?"

The fact that D’s two brothers were themselves sportsmen in the middle of their own seasons may have played a part in their absence. The fact that sister R has not been back to Nigeria since she left there in 1988, and that she considers a traditional marriage not to be valid marriage unless the couple live in Nigeria suggest that for her the importance of the event did not justify travelling. The failure to invite respected members of the family living in Nigeria is best understood as a further reflection of the relatively casual way in which D approached the whole affair. In his own words it was "to get [N] and her mother off my back."

I also take the view that although L is not a blood relative, he is an important male number of D’s family. He has known D for 30 years and since the latter was a small boy. A statuesque, deep-voiced man over a decade older than D and married to D’s eldest sister, he would be a significant male presence. He radiated a form of authority from the witness box, even though he was giving evidence that was largely untruthful.

During his own evidence, D ran up against the difficulty of knowing what to call the events in 2002 and 2005. At one point, he referred to the first one as "the introduction" before going on quickly to say "they call it an introduction." He also found himself calling the second event "the ... the thing we were running in January.”

While I place no great weight on what might be no more than chance turns of phrase, it is far more significant that there is no known model for the sort of event that D contends for. In his evidence, he said "My family wanted to go to meet her family, I don't put a name to it, I don't know what it is."

In this respect, I found the evidence of N’s brother A compelling. He disagreed that this was an occasion on which D merely came to show respect. He said that he had been to many traditional weddings and knew what this one was. Had D come to the village for the reason he claims, it would have been an insult and a huge embarrassment to N’s family. Instead, there were good relations between the two families, both of whom knew what they were doing. There was no need for D or his family to visit to see his father, as they had met before in London. There is no such thing as a "respect ceremony": the only two recognised events are introductions and traditional marriages.

I am satisfied that a dowry was paid in this case. The large amount of beverages and food paid for by D amply qualify as such. That is why they were prominently on display and why they were photographed. I also accept on balance the evidence of N’s mother, brother A and cousin J that the handing over of a symbolic sum of money (immediately returned with a symbolic banknote retained) did take place in the living room of Father B's house. This does not appear in any photograph, but I do not believe that these witnesses, reliable in other respects, have fabricated this account.

D paid significant sums of money to N’s family before and after the event. He explains this as being a contribution from him, as a big name. I think it is highly unlikely that N’s family would have accepted money from D if this was merely a party. On the other hand, it is entirely appropriate, and consistent with the December e-mails, that D should have paid so that the requirements of the dowry would be met.

After the marriage, the couple continued to live in London as a family. The relationship between D and N remained turbulent and in 2011 it broke down altogether.

There were then a number of cross-applications for injunctions and orders relating to the children. It was not until December 2012 that N claimed to have been married. She says that it was only then that her solicitor told her what her legal rights were.

During the earlier litigation, N has shown that she can be untruthful. When seeking an order to remove D from the family home, she made more than one sworn statement saying that she had nowhere else to go with the children. In fact, in 2009 she had obtained a social housing flat to which she was not entitled and which she surrendered in 2014 to avoid the consequences. She may have had her reasons for lying to get the flat and for lying to the court, but that does not excuse her. However, having considered the matter, I do not find that it discredits her evidence about the events with which I am concerned. On those issues, I found N to be a fairly straightforward, somewhat flat, witness whose evidence showed no sign of malice or exaggeration. Likewise, her mother gave evidence more in sorrow than in anger, saying that up to a year ago she had had a really good relationship with D and had a lot of respect for him. I was also satisfied that brother A and cousin J were essentially telling me the truth. The tone of their evidence was one of weary resignation that D should challenge something that had so obviously occurred.

In contrast, D was a voluble and unconvincing witness, though not without charm. He has been wrong-footed by the consequences of a ceremony that he took part in out of duty and has clearly decided that this justifies an effort to put matters right by denying his past actions and intentions.

His sisters had plainly decided to back him up. S was especially unconvincing when saying that she could not say where the CD in her hand had come from and that she had not read what was written on it at the time or later. She doggedly attempted to portray the photographic record as typical of a party and only accepted through gritted teeth that it might look rather like a wedding. Sister R was reluctant even to say that she had been invited to the event. Brother-in-law L made a point of saying that he only attended because he was in Nigeria at the time with his wife. He insisted there was nothing significant in any of the photographs or that, if there was, it had passed him by at the time. This included the obviously ceremonial sipping of palm wine that occurred under his nose with him as witness. I regret that I do not accept his evidence.

I conclude that D and N took part in a customary marriage ceremony. They both fully understood the commitments that they and their families were making. Their ignorance of the position under English law cannot undo this. A valid English marriage is not affected by the ignorance of the parties about whether it will be recognised elsewhere, and the same must apply in reverse. The contrary has not been suggested during these proceedings.

Finally, Professor Nsugbe points to the provisions of Section 166 of the Evidence Act 2011, which provides that where there is a question as to whether a man or woman is a husband or wife under customary law, a Nigerian court shall, unless the contrary is proved, presume the existence of a valid and subsisting marriage where it is satisfied that the man and woman were cohabiting as husband and wife. This provision would be brought into play by the cohabitation of these parties, but there is abundant actual evidence relating to this marriage and I do not find it necessary to rely on any presumption in reaching my conclusions.

N seeks an order for her costs since 28 April 2014 to be paid by D on the indemnity basis, with repayment of any sums funded by the Legal Services Commission.

D argues that he should not pay N’s costs, but that if he does, it should be from 18 December only and should be at the public funding rate or on the standard basis.

These being proceedings under s.55 Family Law Act 1986, there are no presumptions and the court will make such order for costs as it thinks just.

D should clearly pay N’s costs. She decisively succeeded on the central issue and had no alternative but to take the matter to trial. On D’s behalf it is said that N has herself been shown to be unreliable on the question of her tenancy and that the parties did not realise the consequences of the marriage: these arguments carry no weight. There is no reason why the consequences of D’s decision to fight the case should be borne by N or by the public purse.

I also direct that N’s recoverable costs will not be limited to public funding rates. There is no reason why D should benefit and N’s lawyers be disadvantaged by her legally aided status.

Although N’s case decisively succeeded, there are no special features justifying a departure from the normal standard basis for assessment.

The costs will be payable from 28 April 2014. D argues that they should only be payable from December because it was only then that N produced the main photograph album. There would be something in this argument if D (as opposed to his lawyers) learned something new from that evidence. As it is, the album did no more than confirm something that he knew and should have admitted from the start.

D will therefore pay N’s costs from 28 April 2014 at the standard rate and subject to a detailed assessment if the sums payable cannot be agreed. I do not extend time for payment, in consequence of which the costs will become payable within 14 days of their being quantified. This gives D time to arrange his affairs.