Burns v Burns

MR JUSTICE COLERIDGE: I will call the parties husband and wife, although that is not, and never has been, strictly accurate because, as it transpires, they have never been validly married. The parties went through a perfectly proper, albeit unconventional, ceremony of marriage on 10 June 2004. It took place in a hot air balloon above Sonoma County in California. However, unfortunately, they failed to obtain a marriage licence prior to its performance. Accordingly, following advice from Californian lawyers, it is now accepted by both sides that the marriage cannot be valid under Californian law, despite the fact that both parties had full capacity to marry and properly went through all the formalities in every other respect. In fact the necessary marriage licence was obtained, but not before , but after the ceremony had happened. If the marriage is not valid under Californian law, it cannot be a valid marriage in this jurisdiction either. That much is all agreed.

The core issue for this hearing is whether or not the wife is entitled to a decree of nullity under the Matrimonial Causes Act 1973, sections 11 to 14, as she asserts or, alternatively, whether the only order which the court can make is to dismiss the petition, as the husband asserts. Of course, this case is all about money. If a decree of nullity is available to the wife, she is entitled to claim the usual forms of ancillary relief. If the petition is dismissed, the husband escapes altogether the effects of the financial provision sections of the Matrimonial Causes Act. The wife’s only statutory claim would then be for the children of the family, under the Children Act.

So, now before the court is a petition for a decree of nullity on the basis that the marriage is void, pursuant to sections 11 to 14 of the Matrimonial Causes Act 1973. I say now, because originally, the wife petitioned for divorce in the conventional way under section 12B of the Matrimonial Causes Act. However, by the husband’s acknowledgement and later answer, he put at issue the validity of the marriage. The wife’s reply joined issue, and in the alternative sought a declaration that the marriage was null and void. Now the wife has abandoned the divorce route and sought leave to amend the petition to seek a decree of nullity. I have granted leave for an amended petition to be filed.

As far as the background and the general chronology is concerned, counsel for the wife has produced a chronology from which the following uncontentious dates, can be collected. The husband is 58, born in 1948, and the wife is 40, born on 8 November 1966. The parties met in 1998. At this time the wife already had a son by her previous relationship, born on 26 February 1993, so 14. The relationship began in 1999 and they began living together in 2000. At the end of 2000, a very expensive ring was bought by the husband for the wife for some £14,500. There is a dispute as to whether or not that ring was an engagement ring in the conventional sense of that term. The wife asserts that it was her engagement ring. The husband agrees that it was a ring, which he bought in order to demonstrate his commitment to his wife and the relationship, but it was not, in the true sense, an engagement ring.

Following the purchase of that ring, the parties went on a trip to Dubai, and it is the wife’s case that they became engaged whilst there. Again, the husband accepts that some kind of commitment was entered into between themselves at that time, but it did not, he says, amount to an engagement. Following their return to this country, after their trip to Dubai, the wife gave birth to their first son on 1 August 2001. He is 5½. Two years later, on 16 January 2003, their second son, was born. He is therefore 4. It was around that time, early 2003, according to the wife, that discussions about a trial marriage began, and it was agreed, according to her, that they would indeed get married, but they would have an unusual marriage ceremony. They agreed that they would not go through a conventional ceremony in this country, but that this somewhat unconventional wedding ceremony would take place abroad. I will expand upon that further in a moment.

It is pertinent to note that as early as 16 June 2003, a church in this country was booked for a blessing ceremony following a wedding ceremony. The relevant documentation is in the papers evidencing that which I have. Consistent also with that blessing ceremony, in October and November 2003, other indicia of a wedding celebration were arranged; the photographer, the marquee, and the disco, were all booked for 4 September 2004 to follow the marriage ceremony, which was to take place in California. On 7 October 2003, the necessary flights to San Francisco were booked to enable the wedding to take place, according to the wife. On 28 May 2004, she ordered her dress, which in normal circumstances would be regarded as a wedding dress.

On 6 June 2004, in accordance with the plans, the parties flew to San Francisco, and on 10 June 2004, a marriage ceremony was indeed performed by a Mr Kijak in his hot air balloon above Sonoma County. I have seen numerous photographs of the ceremony in the air, which was attended by the wife’s sister and her then boyfriend. It was a perfectly proper, if, as I have said, somewhat unconventional ceremony. I have heard the vows that the parties offered one to the other, as administered to them by Mr Kijak, an individual licensed to perform marriages in that jurisdiction. It was a happy and joyous affair.

The same day, the parties attended at the local Sonoma County office to do the necessary paperwork for the marriage. I use those neutral terms because there is a dispute as to precisely what each party thought they were doing at that time. What is plain is that that day, but following the ceremony, the appropriate licence was indeed obtained from the appropriate office in Sonoma County, and the day following the ceremony, and following the obtaining of the licence, the marriage was properly and officially registered at the County office. They remained in the country for a few days and in due course, returned here.

Following upon the ceremony, the wife changed her name on her driving licence to Burns, giving the reason that: “it was due to marriage”. On 4 September, in accordance with the plans made over a year earlier, a lavish service of blessing took place at Christ Church, Emery Down in the New Forest. I have seen, again, numerous photographs, and indeed, a DVD of that occasion. That is to say, the events and arrangements leading up to the blessing service in the church, and the reception, which had all the hallmarks of a wedding reception. It took place later at an establishment in the New Forest. Sadly, the wife contracted food poisoning, and was unable to be present during the actual reception but, of course, although that must have marred the occasion, it did not in any way undermine its purpose.

The following year, on 11 June 2005, in other words, one year following their ceremony in the hot air balloon, the parties celebrated what the wife describes as their wedding anniversary at a hotel in West Sussex. It was, so far as the wife is concerned and was concerned, a conventional celebration of that wedding anniversary. The wife changed her own son Ryan’s name to Burns in October 2005.

Sadly, the marriage began to break down in November 2005, and the solicitors’ correspondence began on 11 January 2006. The solicitors’ correspondence dealt with matters relating to financial provision and the like, and made no mention at all of any difficulty relating to the status of the parties or any flaws that might exist in the process that had led up to the wedding in California. The rest of the procedural dates are set out in the chronology. The case has taken its course since then. Numerous witnesses have provided statements, and the matter came in front of me for hearing two weeks ago.

Those are the basic dates and chronological facts, so far as this unusual case is concerned. There is, as can be seen, almost no issue about the main facts. The issue is as to what was in the respective parties’ minds leading up to the ceremony, at the ceremony, and since then.

The wife’s evidence and case is that the build-up to the wedding day was in every sense normal and conventional, save perhaps as to the actual logistic of the ceremony itself, in the hot air balloon. The parties planned the wedding in America, with the wife taking the lead role in making the plans, the bookings, et cetera, but all in consultation with the husband. The wedding duly took place as planned, officiated by the balloon company owner, who was licensed to perform the marriage, Mr Michael Kijak.

On the day of the marriage, because of the exigencies of ballooning, they were forced to go through the ceremony first, very early in the morning, whilst the weather was favourable and fine, and then attend to the paperwork at the Sonoma County offices later in the day, in particular, to get the licence. None of this, says the wife, was especially concerning or alarming to her because Mr Kijak seemed to know what he was doing and did not indicate that there was any problem in doing the things in this order, albeit that it was unusual. According to the wife, he said he had done it this way around on other occasions, although in oral evidence he did not confirm that.

The wedding was witnessed by the wife’s sister and boyfriend and later, they flew home. The large and expensive wedding blessing ceremony took place at their local parish church, attended by numerous friends and family. This had been planned and organised long before their departure to the United States. Thereafter, she says they lived in every sense as man and wife and no one least of all her doubted for a moment that they were properly married. It came as a complete shock and surprise to her when the husband asserted that the marriage was not valid in his acknowledgement of service and then answer. That was the wife’s case and her evidence.

The husband, on the other hand, tells a very much less straightforward tale. He did not in any material way dispute the main facts and events, and he accepts that to all outward appearances it would seem that they had been married and were indeed married, but he says that is not the whole truth. The truth is more complex, he says. He had been through a very stressful time over the divorce and financial proceedings relating to his previous marriage and the last thing in the world he wanted to do, or intended to do was to remarry, however much he adored his “wife”, which he acknowledged that he did.

Therefore, the following elaborate plan was hatched up between them both. They would indeed arrange for this ceremony and later blessing, but they would ensure that the actual ceremony was in some way flawed so that the marriage was never valid and they were never validly married. This would, he asserts, satisfy the wife’s desire to present the image of a married couple to the world whilst also fulfilling his aim of not actually being legally married. Accordingly, in essence what he says is that both parties knew full well they were participating in a sham marriage, but this suited both their respective expectations and requirements at the time.

Mr Kijak, he says, knew it was all a sham too, and that what he was doing was insufficient to supply them with full marriage status. He says it is entirely disingenuous for the wife now to assert a valid marriage when she has known all along that it was a charade. He acknowledges that his version means that they must all have been deliberately misleading the Californian authorities, the vicar in England who carried out the blessing service and all their friends and relations who attended the festivities here and generously sent them monetary donations to an art fund by way of wedding gifts. His case, in a nutshell, is that. It was all a big legal sham orchestrated by them both and with their full knowledge and understanding as to what was going on.

One thing is certain, they cannot both be telling the truth, so the first issue for me to resolve is as to the truth of their respective versions and the events leading up to and on the day of the wedding on 14 June. If the husband is correct, this was indeed not a marriage at all, but a bit of playacting.

As far as the evidence is concerned, each side has filed statements by both themselves and their witnesses, in support of their case. I have also seen numerous photographs of the wedding and blessing and, as I say, even the DVD made on the day of the blessing in England. I also heard orally from both parties, and by video link from California, I heard directly from Mr Kijak, who performed the ceremony. Finally, I heard briefly from the husband’s own daughter.

The evidence incontestably shows the parties fully engaging in all the usual paraphernalia of a wedding, blessing and reception. It was all fully photographed and there can be no doubt about the impression that is created by those photographs. But what was going on? Was it a wedding or a pretend wedding?

Having read the statements and seen and heard the parties, I unhesitatingly preferred the evidence of the wife and I accept her version of the events as she sets out in pages 284 to 288 of section C of the bundle.

Her version of all the events leading up to and since the central events of 2004 is fully supported by the other witnesses and, more importantly, by all the many documents and photos which have been produced. Her version happens also to accord with common sense and ordinary human behaviour. Further, as a witness, she struck me in evidence as patently honest. When seeing all those photographs, et cetera, if this was not genuine, it was indeed the most elaborate and deceptive sham imaginable.

On the other hand, the husband starts from these twin difficulties. Firstly, his version is quite frankly completely improbable and in places even, I found, preposterous. It is both far-fetched and contrary to one’s experience of ordinary human conduct. Secondly, it involves him having to acknowledge that he lied to the Californian authorities, the vicar and all his friends so that they innocently took part in this playacting. Either he was dishonest with them, or he is trying to pull the wool over the eyes of the court now. One way or another, his credibility is gravely undermined from the start.

Furthermore, not one of the documents supports his version and I found his performance in the witness box somewhat unimpressive as he stumbled over answers to the obvious questions which his version provoked. His daughter gave evidence, but I did not find it particularly helpful or persuasive as all she was doing was repeating what her father had told her in circumstances where the last thing she wanted was for her father to remarry, and he knew that.

But, nor is the husband assisted by Mr Kijak who said, for the first time via the video link, that although he knew he was going about things in an irregular way, he did not think this invalidated the process, and if he had been asked at the time, he would have told the parties that it was perfectly all right to do it this way round, ceremony first, licence second.

Accordingly, with this evidence from Mr Kijak the husband’s case that he was deliberately participating in the events in this order to ensure that the marriage was invalid disappeared in a puff of smoke. For, on his own evidence, he had no other advisor than Mr Kijak at the time, and if he had asked him (and no one did) he would have been told that doing things in this order was indeed capable of effecting a valid marriage, which was precisely, on his account, what he did not want to achieve.

If couples do not want to get married, in my judgment they do not go through these kind of tangled deceptions. They just do not get married at all. There are plenty of other ways of presenting a respectable front to the world without flying to California with two witnesses to take part in a memorable marriage ceremony in a hot air balloon, and then return to this country and reconfirm the whole process by an elaborate blessing ceremony in an Anglican church.

I find that the factual basis for proceeding is as per the wife’s evidence, both written and oral, as supported by her witnesses. I find that she did not know what she was doing was contrary to Californian marriage law and not capable of making her a fully-fledged wife. I accept that all parties knew what they were doing was a bit irregular, but trusted in the experience of Mr Kijak, who did not alert either of them to a flaw in the process on 10 June 2004.

I do not think either fully appreciated the significance of the paperwork which was required, or being obtained. This was just civil paperwork which attended the marriage, and when and how it was completed, within reason, did not matter particularly to them or, it seems, to Mr Kijak. It was more akin to a post-wedding registration process than a pre-wedding permission to proceed. In England, after all, the registration process takes place immediately following the marriage ceremony when it takes place in a church.

In the statement of the wife’s sister, having dealt with the proceedings in the hot air balloon, she says this at page 386:

I am satisfied that the husband has largely invented this explanation somewhat late in the day after the divorce petition had been served, and when remembering the irregularity of the events of the day. He sought to bolster it with a statement from Mr Kijak at an early stage but, which was in the end only half-true. It is difficult not to draw the conclusion, therefore, that he has knowingly been attempting to mislead this court in his determination to avoid the ancillary relief process and pay not one penny more to his wife than he has to. If his extraordinary version is and always was true, it is unthinkable, also, in my judgment, that his solicitor would not have mentioned it at any stage in the early correspondence between the parties. The correspondence is entirely silent on this matter.

What is the effect of these events in law, and in particular, on the wife’s ability to petition the court for the relief which she seeks? The statutory provisions are contained in the Matrimonial Causes Act 1973, sections 11 to 14. The relevant part of section 11, grounds on which a marriage is void, reads as follows:

that it is not a valid marriage under the provisions of the Marriages Act 1949 to 1986 (that is to say where …

So far, so good. If parties to an English marriage fall foul of the technical provisions of the Marriages Act, a decree of nullity is available. What if the marriage takes place abroad, as it did in this case? In that event, reference has to be made to section 14, and in particular, subsections 1(a) and (b). I read the relevant part of those subsections:

preclude the determination of that matter as aforesaid; or

require the application to the marriage of the grounds or bar there mentioned, except so far as applicable in accordance with those rules.”

Those are the statutory passages which relate to this situation. Put simply, if you marry abroad where the Marriages Acts self evidently cannot and do not apply, the court has to look at older concepts of private international law. In this case, it is common ground that by that process, the validity of the marriage is to be looked at by reference to the local law of the wedding ceremony, the lex loci celebrationis , as it is described in Latin, in this instance, California. The Californian law in this regard is agreed and is the subject of an agreed schedule by the local Californian lawyers, which is in the papers at page 505. The relevant part reads as follows (on page 506) under comments (1) whether there is a void or a voidable marriage here:

Mr Moor QC’s point is quite simple and he asserts that it is a complete knockout point of law beyond which the court need not look. I do not do credit to his careful argument, but it is summarised in paragraph 34 of his skeleton in this succinct way, and I quote:

Californian law applies;

there was no valid marriage in California; and

there was no void or voidable marriage in California.

But is it as simple as that? Mr Scott QC says that certainly, it is not. He argues that this situation is precisely provided for by section 11(a)(iii) and section 14 of the Matrimonial Causes Act, and by that process, a decree of nullity is obtainable. Californian law, he asserts, is determinative of the validity of the marriage but not of the remedy, either by way of decree or ancillary measures, which is available in this jurisdiction following that determination of validity. I have been referred to numerous cases and other authorities.

Both sides have referred in their skeletons and in argument to the 1970 Law Commission report on nullity of marriage, which was the foundation for the current statute, and also to various cases, none of them actually on all fours with the current one. Both sides in particular referred me to the case of Berthiaume v Dastous , which is reported at (1930) Appeal Cases page 79. As I say, both referred me to that case in support, they said, of their respective positions. The head note of that case reads as follows:

I agree with Mr Scott that this case supports his argument. He puts it this way in paragraph 46 of his skeleton:

In dealing with the case to which I have just made reference, he says this at paragraph 51:

I was referred also to the case of Kassim v Kassim of 1962 Probate, page 224. That was a judgment of the late Ormrod J. The head note reads as follows:

The judge held in the second finding that on finding a marriage to be void ab initio , the court has jurisdiction only to pronounce a decree nisi of nullity and has no option to grant a declaratory judgment under RSC order 25. At page 232 of the judgment, the following is found, and I quote from the judgment of Ormrod J:

In my judgment, therefore, the only order I can make in this case is a decree of nullity. Mr Scott urges that this case clearly supports the proposition that the court should pronounce decrees of nullity to recognise existing states of affair. Mr Moor, on the other hand, denies that this case has any relevance to this situation because it is referring to an English marriage and not a foreign marriage. I have come to the conclusion that I agree with Mr Scott’s submissions. A declaration that the marriage is null and void, otherwise known as a decree of nullity, is the correct remedy here. I have, as I say, been referred to numerous other cases, but I do not think they take the matter any further.

The question in the end is quite a narrow one. Am I precluded from granting a decree of nullity in relation to a foreign marriage, which all accept is invalid by the local law, because that local law does not categorise this invalid marriage by its own terminology as void? Mr Moor says if it is not void in California, it cannot be void here, so no decree is obtainable. Mr Scott says once invalidity is established, the role of the foreign law is largely exhausted and the lex fori , i.e. England, produces the necessary remedies. I agree that the foreign law is the litmus paper by which validity is tested. Thereafter, our own law determines the remedy, in this case a decree of nullity.

In my judgment, Mr Scott is correct. Once the foreign law has determined whether it is or is not a valid marriage, it is for the lex fori to decide its implications and what remedies are available to the petitioning spouse. It is neither here nor there that the local law happens to use the same wording, “void and voidable”, to categorise certain invalid marriages. Some local laws would, some would not; that is coincidence arising from similar use of language. The point is that it is invalid by local rules, and by English law having determined that it is invalid, a decree of nullity is available.

There is a final suggestion from the authorities, namely that certain marriage ceremonies are so deficient of the character of marriage that almost as a matter of public policy, they cannot attract the kind of relief ancillary to a nullity decree that is usual. If that is being suggested in this case and in relation to this marriage ceremony, I reject it, for what is a licence to marry? It is part of the preliminary paperwork provided by the State to the parties and the officiating minister to indicate a fulfilment of, or compliance with the requirements of a capacity to marry and the like. In particular, its purpose is to prevent bigamous unions taking place by ensuring that the parties are indeed free to marry. Absent any special religious considerations and requirements for a licence, it is no more than that.

In this case, the parties were fully entitled to marry. There being no legal impediment in their status or capacity under the local law or, indeed, under English law, they fulfilled the local requirements. The granting of the licence before the event would have been a formality. Had they turned up to the Sonoma County office on the evening before the early morning balloon ride, the paperwork would have been properly obtained. In other words, if the process had taken place 24 hours earlier, this case would not have happened.

However, the parties fulfilled all the local requirements as to capacity and the like, as did the marriage ceremony itself. Every case, of course, in this regard is in the end fact specific, but in this case, I regard the shortcomings in the preliminary process as the merest of technicalities. Enough, of course, to render the marriage invalid, but nowhere near to the category of cases where the marriage can be described as a non- marriage and so disentitles the petitioner even to a nullity decree.

Accordingly, I find that section 14 is precisely targeted to this situation. The purpose of the nullity provisions of the Matrimonial Causes Act 1973, introduced by the 1971 Amended Legislation, was to ensure that where parties intended to marry and went through the proper process but it was in some way or other flawed, the court could nevertheless adjudicate upon their financial affairs as if they had been married. That legislation is in the interests of public policy and justice. It was designed precisely, it seems to me, to meet this kind of situation, and section 14 to meet the situation where the marriage is a foreign one. Accordingly, on the basis of the amended petition, I will grant a decree nisi of nullity.