Leigh v Hudson [2009] EWCA Civ 1442

Case No B4/2009/2299[2009] EWCA Civ 1442
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION
(MR JUSTICE BODEY)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 9 th December 2009
Before
LORD JUSTICE THORPELORD JUSTICE WALLLORD JUSTICE PATTEN
Between
LEIGHRespondentHUDSONAppellant
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Valentine Le Grice QC and Miss Rebecca Bailey-Harris (instructed by Messrs Russell Cooke) appeared for Appellant. for THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Judgment
[1]Mr Le Grice and Miss Bailey-Harris appear this morning for Miss Hudson. She met Mr Leigh in the 1990s. A relationship developed between them, and their daughter, I, was born on 2 June 2001. In August 2003 Miss Hudson accepted Mr Leigh’s proposal of marriage. She wanted a religious ceremony and he wanted a civil service. He in particular wanted the civil service to be in England. Miss Hudson wanted a religious service in South Africa, where the parties were largely living. Arrangements were made with a priest to conduct a ceremony at their home on the outskirts of Cape Town. It was plainly agreed that the marriage register would not be signed and therefore that the ceremony would not give rise to the status of marriage, and the words of the ceremony were slightly adapted to indicate that it was an event that was not intended to change status but was an event designed to accord with Miss Hudson’s religious convictions. The ceremony took place on 23 January 2004 and shortly thereafter the couple came to this jurisdiction and endeavoured to arrange a marriage service at Chiswick House through the registrar in Richmond or Hounslow.[2]Sadly, the relationship broke down before the civil ceremony and litigation broke out between them when Mr Leigh petitioned under section 55 of the Family Law Act 1986 for a declaration that the South African ceremony was not a marriage. That petition was presented in August 2007 and in the same month Miss Hudson petitioned for divorce. These two petitions came before Bodey J in April 2009. He delivered a considered judgment on 5 June 2009 dismissing Miss Hudson’s petition and making the declaration sought by Mr Leigh on his petition.[3]Mr Le Grice has always challenged the legal validity of this outcome. His reliance is on the terms of section 58(5) of the Family Law Act 1986. which insofar as is relevant states:
“No declaration may be made by any court, whether under this Part or otherwise— (a) that a marriage was at its inception void.”
Mr Le Grice says that for a judge to declare that a ceremony gave rise to a non-existent marriage is only terminology. The reality is that the judge is declaring the ceremony void, and accordingly that contravenes the plain terms of the section. (a) that a marriage was at its inception void.”[4]That argument was considered and rejected by Bodey J. He found no direct authority but was impressed by the obiter observations of Hughes J in the case of AM v AM [2001] 2 FLR 6. Mr Le Grice necessarily has to say that Hughes J was simply wrong in law. The kernel of the judge’s conclusion in the court below is to this effect:
“So in my view the Court must be able, in the rare cases where such a point arises, to rule that some questionable ceremony or event, whilst having the trappings of marriage, failed fundamentally to effect one, such that it neither needs nor is susceptible to a decree of nullity to determine its lack of any legal status: ie to find in convenient shorthand that it is a ‘non-marriage’ or a ‘non-existent marriage’.”
The point has been considered in the context of an Islamic religious marriage which has no effect in law and which requires a subsequent civil ceremony. That is broadly the situation that has been considered by the courts to date, and Mr Le Grice says that there are other cases in the pipeline.[5]I am in no doubt at all that Bodey J was plainly right to rule as he did, for the reasons that he gave, and I would refuse this application.[6]I agree.[7]I also agree.

Order

Application refused.

Cited in 1 later judgment