KU v BI

This is an application by the petitioner for a divorce from the respondent. The petitioner is a KU and the respondent is BI. The petitioner asserts that the two parties married on 30 March 2013 in a ceremony that took place in a village in Nigeria. The respondent denies that the two of them were legally married either on that date or any other, and thus the petitioner is not entitled to a divorce as there is no marriage to terminate.

It is common ground between the parties that the two of them were in a relationship from approximately 2013 during which the petitioner became pregnant. Their first of three children, X, was born in 2013. Their two subsequent children, I and J, were born in 2015 and 2016. During this time the parties cohabited before the relationship broke down in June 2023. Subsequently the petitioner applied for, and was granted, a non-molestation order in November 2023. There have been ongoing children act proceedings which have recently concluded. The children are now 12, 10 and 8 and are not currently having any direct contact with the respondent.

It is also an accepted position that at the date of their cohabitation, and the alleged marriage, the respondent was already married. The petitioner says that she was not aware of this when they married but she found out subsequently. The respondent’s case is that she knew at the time they began cohabiting and subsequently married. The respondent surprisingly remains married and has made no attempt to divorce her. This is despite having now been separated from her for at least 12 years. There is no dispute that this was (and is) a valid marriage that took place in this jurisdiction. The petitioner asserts that this was a marriage purely for the respondent’s immigration status, albeit he disputes this.

Finally, it is an accepted position that neither party were in Nigeria on the date of the alleged wedding in March 2013. Both parties accept that they were living in this jurisdiction and that neither travelled to Nigeria. It is accepted by both that they had a smaller celebration in this country. The petitioner asserts that it had been agreed that they could both attend via proxy, and that this is a common mechanism for marriage in Nigeria in the customary marriage jurisdiction. The respondent seeks to rely upon their lack of presence, at their own wedding, as a reason to say that this cannot have been a valid marriage. However, for reasons I will come to, the respondent now accepts that he had intended for this to be a valid marriage.

The petitioner made her application for divorce on 31 May 2024. The respondent replied in an answer to divorce on 4 October 2024. Within this answer to the divorce he indicated that he wished to dispute the application on the basis that ‘the marriage is not valid’. The Respondent further asserted that the marriage certificate provided was forged as he had never seen it prior to the non-molestation order proceedings which had occurred earlier that year. Within his response the respondent sought for the application to be dismissed.

The court listed the case for a first hearing on 22 April 2025. On that occasion the petitioner was represented, and the respondent was in person. The court approved the instruction of a single joint expert to give the court an expert opinion on Nigerian marital law to seek to resolve the dispute. The expert was specifically asked to give an opinion on the legal status and requirements of Nigerian traditional and customary marriages. The expert was to be specifically asked whether customary marriages were binding when conducted In the parties absence.

The court has received a written report from VI a Nigerian legal practictioner. The case was then listed for a further direction hearing on 16 July 2025 before HHJ Birk. On that date the case was listed forward to this final hearing with the court allowing the Nigerian lawyer to come and give evidence. I have dealt with this hearing today but had insufficient time to resolve the case and thus am preparing a written judgment. Both parties have appeared before me in person. The petition continues to receive legal aid, but this didn’t provide for her to have representation at this final hearing.

Courts in this jurisdiction recognise foreign marriages if they comply with the conditions of the jurisdiction within which the marriage was celebrated. Dicey & Morris ‘The Conflict of Laws’ 16^th edition provides the following:

This case, like many others, falls within subsection one. I must consider as part of my decision whether the marriage was celebrated in accordance with the form of the law required in Nigeria. This is why I have been assisted by the opinion of VI in his expert opinion.

If the marriage complies with the rules of Nigeria, regardless of whether those rules equate to those in England and Wales, it will be a valid and recognised marriage. This was confirmed by the Privy Council as long ago as 1930 in Berthiaume v Dastous [1930] AC 79where it was said:

“If there is one question better settled than any other in international law, it is that as regards marriage – putting aside the question of capacity – locus regit actum. If a marriage is good by the laws of the country where it is effected, it is good all over the world … If the so-called marriage is no marriage in the place where it is celebrated, there is no marriage anywhere …”

In this jurisdiction if parties do not properly comply with the relevant elements of a marriage (such as age or within prohibited degrees) the marriage can be deemed as either void or voidable. The Matrimonial Causes Act 1973 specifically sets out grounds for void marriages (s11) and voidable marriages (s12). Crucially in the event where a marriage has been deemed as either being void or voidable the court makes a nullity of marriage order. Importantly a nullity of marriage order still allows an applicant to make an application for financial provision (including property adjustment orders) pursuant to s21 MCA 1973 as well as those who have been divorced. The fact therefore that in this jurisdiction that the marriage was not a fully legitimate one does not bar financial relief automatically.

In this case the issue may be whether there is a similar remedy available, if the Nigerian marriage was not properly celebrated to be recognised as a legitimate marriage in this jurisdiction. Moylan J specifically considered this issue in the case of Assad v Kurter [2013] EWHC 3852 (Fam). In this case a marriage was sought to be undertaken in Syria. An expert on Syrian law took the view that whilst the ceremony took place in a church and was a marriage ceremony they had not obtained permission from the ‘Ministry of the Interior’ as the Husband was not a Syrian national. The expert also confirmed that there was no concept of non-marriage in Syria or of a void/voidable marriage. Moylan J came to the conclusion that the effect of the evidence was ‘as a legal marriage was not effected, there is no marriage’. He said the following of note:

He however then went on to consider whether it could be a void marriage, capable of grant of nullity, or a non-marriage, without the possibility of a grant of nullity. He considers the dicta of Coleridge J in Burns v Burns [2008] 1 FLR 813 where a similar issue had arisen. In that case Colleridge J said:

Moylan J agrees with this proposition in Asaad saying the following:

And then:

He then helpfully summarises the position as follows:

Finally given the fact that the Respondent agrees he was already married it appears important to refer to s11 MCA 1973 which provides the grounds upon which a marriage would be void. It is important to note that the grounds upon which a marriage celebrated would be void would include (11(d)) one where ‘in the case of a polygamous marriage entered into outside of England and Wales, that either party was at the time of the marriage domiciled in England and Wales. The section specifically notes that a marriage is not polygamous if at its inception either party neither has any spouse additional to the other. This is relevant because it appears regardless of the arguments about the validity of the marriage in Nigeria this marriage would have been a polygamous marriage for the Respondent given he was at the time domiciled within this jurisdiction.

Given the legal situation that I have set out above a key issue that I need to determine is the status that this marriage would have were this case being litigated in Nigeria. The Nigerian law is clearly the ‘applicable law’ given that this is where it is said that the marriage was celebrated. I am very grateful for the expert opinion of VI who has provided a detailed report on the basis of Nigerian Family Law within his report dated 7 June 2025.

VI’s report tells me that Nigeria is a federation of 36 states and a federal capital territory. Each state and the capital territory has its own High court Law. Various systems of law are administered in Nigeria which include statutes enacted by federal and state parliaments, the principles of common law as administered by the judicial system of this country and customary law. Customary laws are said to be customs accepted by members of a community as binding upon them.

There are two main types of marriage in Nigeria, a statutory marriage and a customary marriage. A statutory marriage is conducted under the Marriage Act 1914 which was a statute of the Federal Parliament. Within these statutory marriages a couple will sign a marriage certificate (known as a Form E) in the presence of a marriage registrar or a licenced priest. No party seeks to suggest that this has occurred within this case. This type of marriage is also called a Court or Registry marriage.

The second type of marriage is a customary law marriage, also called a traditional marriage. VI tells me that it has been established in a case called Nsirim v Nsirim from 1995 that for there to be a valid customary law marriage there must be three essential requirements that are fulfilled:

Crucially it is the third element in this case that it is said may not have occurred. No party suggests that neither of the first two conditions were met. VI’s evidence is that it has been judicially determined by the High Court in Nigeria that a valid Yoruba or Igbo customary law marriage is not contracted until he formal handover of the bride takes place. VI refers to a case of Beckley v Abiodun from 1943. He helpfully provided me with a copy of this judgment to read. VI suggests that this case says that whilst a man could attend the marriage ceremony via proxy the bride cannot attend the ceremony by proxy as she is the person who has to be handed over to the man’s family.

VI’s opinion is that given the petitioner did not attend the ceremony, and was not thus handed over, this cannot be a valid marriage in Nigeria and should not attract a decree of divorce or nullity. I would emphasise that given the comments from the cases of Asaad and Burns referenced above this is not the issue for VI, rather his role is to give his opinion on the validity of the marriage in Nigeria, rather than give me his view on the remedy that is available in this jurisdiction.

VI was asked a further question on 17 June 2025 as to whether the handing over of a woman could be done via proxy, if there was the consent provided by all parties. His response (within 45 minutes) was that ‘The formal handover of the bride to the groom’s family is compulsory under Yoruba and Igbo customary laws. It cannot be waived or dispensed with.’

VI attended this hearing to give evidence. The bulk of the questions were asked by me as I sought to understand the basis for his opinion. He referred me repeatedly to a textbook from which he had obtained this information. On my request he sent me a copy of this book, which is the third edition of Family Law in Nigeria from E.I. Nwogugu. The book confirms that the law is accurate as at the end of February 2013. VI specifically told me that this is not a practictioner’s text per se, but is a textbook. I am slightly concerned that the textbook is now some 12 years out of date. I would be cautious in relying on any such textbook in English law given the passage of time.

In any event the relevant section of the textbook is on page 73. It includes the words that are almost verbatim within VI’s report. Notably that ‘It has been judicially decided that a valid Yoruba or Igbo marriage is not contracted until the formal handover of the bride takes place.’ The book references the case of Beckley and Ikedionwu as VI does within his report. As above VI helpfully has provided me with a copy of both judgments.

The case of Beckley is a decision from 1943. In this case, the father of a man who sought to get married sought to prevent his statutory marriage to Ms Abiodun, on the basis that he had already married a lady called Ms Alade in a customary marriage. The father sought to argue that the ceremony had taken place with him performing his role on his son’s behalf and having paid the dowry on his behalf. The father sought to argue that he couldn’t marry again given the existing marriage. It was held by the court that ‘the performance of the Idana ceremony without a subsequent taking of the girl to the intended husband’s house did not effect a marriage by Yoruba law and custom’ and thus the son was not prevented in marrying Ms Adiodun.

The judgment notes that it was unclear to the judge whether the son even consented to the marriage given the evidence of letters (this was 1943) between the two. The judge determined that he could not agree that the letters showed that the son consented, or that he had authorised the father to effect a complete marriage for him in his absence, albeit he had consented to the performance of the Idana ceremony. The judge places considerable reliance on the ‘common sense practice followed by the majority of mankind by which an essential part of the marriage is the giving of the bride to the bridegroom, although the methods for doing so vary greatly … at all events they have to be united.’

The judge concludes that a Yoruba marriage is not effected to be a marriage until the ceremony has been performed. The judge was not satisfied in Beckley that the girl was ever ‘offered to’ the son and there was no evidence that the ceremony can take place in the absence of the groom by proxy. He most notably however thinks that there was not evidence that the son consented to the marriage ceremony taking place in any event.

I have set this decision out in detail as having read it I cannot understand how VI can say that this it is acceptable for the husband not to be present, but the wife must attend. In this case it was the proposed husband who did not attend whilst the wife did. It was the non-attendance of the son Beckley that led to the marriage being not recognised. The case also appears to turn on other elements, most notably the lack of consent by the son for the marriage and the failure to ever make the proposed bride available to him. In many ways his absence from the wedding, and the lack therefore of handing over of the bride, emphasises the critical lack of agreement to the whole event. This for the reasons I will set out below is notably different to the case before me.

The other case that I have been provided with is Ikedingwu v Okafor, which is a case from 1966. In this case a Wife under customary law sought to prevent her Husband having a statutory marriage on the basis that they were already married. It was not disputed that they had gone through part of the ceremony of marriage according to their customary law. It was admitted in the evidence that the Husband had met with the Wife’s father and had agreed on a bride price. £100 of the £180 agreed had been paid and there had been an exchange of drinks between the two families. The judge (crucially in my reading) did not accept that the parties had lived together after the part payment of the dowry. The Husband before completing the ceremony decided that he no longer wanted to continue with the marriage and engaged another woman and sought to be married to her instead.

The judge determined that the failure to complete any form of marriage ceremony, after the partial payment of the dowry, meant that the marriage had not taken place and the man was free to wed the third party. Again, for reasons that I will explore below, this is notably different to the case before me.

I am concerned that VI was defiant in his views in evidence that these cases showed that there was no ability for the Wife to attend the ceremony via proxy or that the Husband in fact could. It is notable that both cases are now very old cases in the context of the modern world. In 1943 and 1966 it was likely unusual for parties to seek to have ceremonial marriages whilst living in a different jurisdiction or indeed to live together before marrying. Notably in Okafor the judge said the following of the ‘Wife’s’ evidence:

This may still be the state of judicial thinking in Nigeria at present, however I am unsure on the point. I note in passing that the concept of illegitimate children still existed in this jurisdiction until 1987, albeit had begun to be phased out in 1969.

The reality for me is that there are no cases that I have been referred to that assist me in deciding how this case would ultimately be decided in Nigeria. Both cases referred to are of significant age and potentially relate to a different world to the one that exists in this case. Both also are on vastly different facts where the court entirely accepted that one of the parties to the alleged marriages didn’t give consent to the marriages. Also, on both occasions the court were either satisfied that no marriage ceremony occurred at all or that no consensual marriage ceremony occurred.

For the reasons that I will set out below this is not the circumstance in the case before me.

When I first read through these papers, I had a clear initial view that it couldn’t be rational to agree that parties had gotten married in Nigeria at a ceremony where neither were present. However, having heard more of the evidence my view on this changed somewhat. This is principally because of the evidence that I heard from both parties. Both parties gave oral evidence before me on oath. The parties had prepared some limited cross examination of the other, but most of the evidence was in response to questions that I asked them both, seeking to better understand the situation that had existed.

The petitioner was adamant that the two of them had gotten married. She says that she lived from 2013 to 2023 on the understanding that the two of them had gotten married in 2013 and they never doubted it thereafter.

The respondent’s initial argument was that they had not gotten married, and this was not a valid legal marriage. However, over the course of his evidence he revealed far more about the events on 30 March 2013 than he had done previously. Indeed, at the outset of his evidence he sought to argue that the event that had occurred on 30 March 2013 in Nigeria had merely been an introduction between the two families, them having found out that the petitioner was pregnant. He specifically denied that this was a wedding when I asked him about this.

Part way through his evidence I became aware that I had been provided with a video of the alleged wedding. The petitioner said that this had been found in storage on a DVD that they’d been sent after the wedding. I took some time to be able to view the unusual video format and played it to the respondent during his evidence. Whilst it would have been preferable to play the whole tape, the limits of time meant that I had to play parts and skip through what was a long 28 minute recording. I asked the respondent questions about what I was able to see on the screen. During this questioning the respondent’s position changed dramatically and he accepted that far more had been going on during this date than he’d originally been willing to accept.

Having seen part of the video the respondent accepted the following:

All in all, his position represented a dramatic change in the position that he presented prior to the hearing. The respondent essentially accepted that he’d intended to be married to the petitioner, that he’d consented to the marriage, that their families had spent time and money having a celebration for their marriage and that they had lived thereafter on the understanding that they’d gotten married.

I sought to understand in this situation what was his position and why he sought to object to saying that the petitioner shouldn’t be entitled to a declaration that they were married and an order for divorce. He repeated sought to emphasise that whilst they may have thought they were married the evidence now showed that they were not ‘legally married.’ This was a highly unattractive argument in the circumstances, when his own evidence had been he'd spent ten years in a relationship where he understood that he was married. I understood that he was not married in the statutory sense in Nigeria, but he clearly was aware of customary marriage and his evidence was that he’d intended to enter into a customary marriage.

Crucially, and distinct from the circumstances in Okafor and Berkley, he specifically accepted that he’d consented to the marriage and he’d known it was going ahead. The events that I observed on the video had all taken place with the explicit consent of both parties, albeit without them being in attendance. Thereafter both parties had for at least ten years sought to rely upon those events in how they lived their lives. This is notably different to the partial payment of a dowry before changing one’s mind (Okafor) or a father marrying off his son without him consenting to the same (Berkley).

Thus, by the end of the evidence of both parties there actually was a consistent and universally accepted position about what happened on 30 March 2013. The only issue between the two of them remained whether these events (as they now agreed they occurred) were sufficient for a marriage to be sufficiently recognised in Nigeria and thus capable of recognition in this jurisdiction.

As above the facts of this case are vastly distinct from the facts in the two cases that VI referred me to. They are distinct on their specific facts, and I emphasise again those cases are now old cases from courts of first instance. VI was not able to point me towards any appeal court decisions on these points, or anything more recently. This concerns me as I struggle to be clear as to what the outcome would be if this case were being litigated in Nigeria. The facts are sufficiently unusual such that the outcome is far from clear.

The crucial issue in this case when it comes to the Nigerian law is whether there was a ceremony of marriage with the handing over of the petitioner to the respondent’s family. Both other two elements of the NSIRIM test appear to have been met given that both clearly had capacity, and it is accepted that a dowry was paid. It also is accepted that the respondent’s family also brought significant amounts of food and drink (plus other items including a live goat) to the event as requested by the petitioner’s family.

From what I have watched on the video there was also a notable celebration that took place. This included some formal elements but also the families referring to the other parties’ family as their ‘in-law’s’. The attendees at this event are dressed smartly in clothes that would be associated with an occasion such as a wedding in this country, or at least some form of celebration. The photographs indeed specifically call this a ‘traditional wedding’ and this is what was intended by the parties.

It appears from my consideration that there was a celebration and some form of ceremony that took place with the consent of both parties. All who attended were in no doubt as to why they had attended and what they were doing that day. No party misunderstood the event with three of the four biological parents being in attendance. The only parent missing was allegedly unwell or unable to travel. There was a broad amount of consent as to what the outcome of the day would be.

This is vastly different to the cited legal cases, where either no celebration occurred, or one occurred without the knowledge or consent of one of the parties to it.

The only element that appears to have been missing is therefore whether there was a formal handing over of the bride to the husband’s family. In many ways this is entirely where the age of the cases may be of relevance. In this case the petitioner was already living with the respondent. They had known each other and had been cohabiting for some time. Indeed, their relationship was such that they had had sexual intercourse and the petitioner was pregnant with the respondent’s child. The petitioner had very clearly been taken to the respondent’s home as she was living in it and had been for some considerable time. They were clearly ‘united’.

The judge in Beckley was dealing with a case where the alleged Wife had never even gone to the Husband’s home. It was therefore entirely open to say that the marriage could not have been effective because she hadn’t been ‘handed over’ to the husband’s family. That is clearly not the case before me and the case is quite clearly distinguishable. In any event it is a first instance decision and not binding upon any subsequent first instance judge in Nigeria.

From what I have read and heard I am not at all satisfied that this alleged marriage would be simply rejected in Nigeria. There is clear evidence of an intention to marry, an agreement to marry, an attempt to marry and thereafter a reliance upon an understanding that they were married. Both parties clearly agreed that the ceremony should and could go ahead in their absence. Both were in fact relying on the fact that it could.

It seems unreasonable to say that these whole circumstances would lead to no marriage at all merely because the petitioner alone was not present to be handed over to the respondent or his family. It is unreasonable because the reason why the petitioner was not there in Nigeria was because she was in the home of the respondent in England. Not only was she in his house, but she had been for some time and was pregnant with his child. It doesn’t seem to me that her non-attendance at the venue, when all other elements were quite clearly carried out does not mean that this would be an invalid marriage in Nigeria.

Despite the opinion of VI I am not satisfied with the opinion that he provides to me. I entirely accept that he is an expert in Nigerian law and has rights to practice in that jurisdiction. I note that he has written articles on similar points that are available online. However, I am particularly concerned by his reliance upon a ‘textbook’ rather than a practitioner’s text that has very limited detail within it. I am concerned that his analysis of the legal situation is very narrow in its consideration. He has simply quoted repeatedly from this textbook and has taken a simple view based upon its limited contents.

He had not considered the content of the cases in any detail and appears not to have rigorously considered the general facts of this case. It is important to note, entirely in VI’s defence, that he did not hear the evidence of the respondent and his large reversal in what he accepted had occurred. I had considered whether I should invite any further opinion on the merits of the argument with this information, however I have decided that to do so would be disproportionate. I have the ability to make my own determination on the matter and VI’s opinion is but part of my decision-making process.

Having considered the totality of the information before me, I believe this marriage would be recognised in Nigeria as a valid marriage and thus it should be so recognised in this country. I entirely accept that this is against the view of VI but I have set out my reasons for departing from his opinions above. Ultimately, I take the view that the Nigerian legal system would recognise a customary marriage in which both parties freely entered a marriage, paid the appropriate cultural dowry and the parties thereafter were introduced and lived together. There was a clear intent from these two parties to marry and that marriage should be so recognised.

The only further consideration that I have had is whether the respondents’ existing English statutory marriage prevented him having a second marriage in Nigeria. Neither party realistically argued this point in any detail and VI’s view was clear that whilst a statutory marriage in Nigeria would have prevented a second customary marriage, the fact that it was a foreign statutory marriage did not so prevent a legitimate second customary marriage. Given that no party challenged this issue I am willing to accept the evidence of VI on this point.

I note that it would have been grounds for a void marriage were the second attempted marriage to have occurred in this jurisdiction, however clearly it did not and thus our s11 MCA 1973 does not apply.

I therefore determine that in the circumstances of this case the parties entered a marriage on 30 March 2013 that should be so recognised in this jurisdiction. Whilst this was not a statutory marriage, it was a recognisable marriage within the relevant part of Nigeria and is so a valid marriage. The petitioner is entitled to apply for a divorce from the respondent and to pursue financial remedy proceedings.

When I stand back I accept that with a very brief summary of the facts this appears to be a potentially very unusual decision. I ultimately am agreeing that parties validly got married in a different continent whilst not being present. However, for all the reasons that I have set out above, and considering the specific cultural practices and rules that exist in Nigeria, together with the very specific facts of this case, have come to the view that this was a valid marriage to be so recognised in this jurisdiction.

Given my decision on the substantive point the issue of alternative remedies is not particularly significant. However, I feel that it is important for me to set out what I would have said were I not to have come to the view that I have above regarding the legitimacy of this marriage.

Had I determined that I was obliged to follow the opinion of VI I would have been in a situation like that in the case of Burns and the case of Asaad. Whilst I would have determined that the marriage would not be a valid one for the purpose of English law I would specifically have had to have gone on to determine the appropriate remedy.

In a case with the facts as set out above, principally those now accepted by the respondent, it is in my view inevitable that I would declare this to be a void marriage rather than a non-marriage. Given the extent of the planning, the consent, the celebrations on 30 March 2013 and the reliance on a marriage thereafter it would be simply inappropriate to describe this as a non-marriage.

If I had followed VI’s opinion the limits of what the parties failed to do, to complete an entirely valid marriage, were for the petitioner to be present and be formally handed over to the respondent who she was already living with. That is a very limited failure by the parties, when they had complied with every other element of a valid cultural marriage. It would have been an even more limited failure given that they were already living together in a settled relationship. The limit of that failure in my mind would not be sufficient to describe it as a non-marriage. It would either make it a voidable or a void marriage, and certainly one where the remedy available would be a decree of nullity rather than a declaration of non-marriage.

The respondent thought he was married, he relied upon the fact that he was married for a 10 year period. In these circumstances it would be impossible for the court to declare this to be a non-marriage. A nullity decree would have been the inevitable outcome based on there being some form of marriage, albeit not an entirely valid one.

The reason for emphasising this, is that even if I hadn’t determined this was a valid marriage capable of a divorce petition, I would have still been entirely satisfied that there had to be a decree of nullity capable of the same s21 financial remedy proceedings. The respondent therefore would have been in realistically no greater situation. Given the contents of his evidence, a decree of nullity would have been my inevitable conclusion.

The respondent had prepared a cost schedule for this hearing. Given that he ultimately has been unsuccessful in pursuing his argument he is not entitled to his costs. The petitioner was legally aided in bringing her application and has made no application for costs. The reality is that even if she had made such an application, I would have been reluctant to grant it given the need for the court to hear the totality of the evidence to reach the decision above.