Galloway v Goldstein [2012] EWHC 60 (Fam)

Case No FD11D05313[2012] EWHC 60 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Monday, 16 th January 2012
Before
MR. JUSTICE MOSTYN
B E T W E E N:
Between
DUNCAN JAMES GALLOWAYClaimantLISA SUSAN GOLDSTEINDefendant
Transcribed by BEVERLEY F. NUNNERY & COOfficial Court Reporters and Audio TranscribersQuality House, Quality Court, Chancery Lane, London WC2A 1HPTel: 020 7831 5627 Fax: 020 7831 7737info@beverleynunnery.com
MS. C. HARTLEY (instructed by Miles Preston & Co.) appeared for Claimant. for THE DEFENDANT did not appear and was not represented.
J U D G M E N T
[1]This is an unopposed application by Duncan James Galloway for a declaration of marital status under section 55(1)(c) Family Law Act 1986. The Respondent to the application, Lisa Susan Goldstein, has not been served as the Applicant has been unable to locate her and on 26 October 2011 the Senior District Judge ordered that service on her be dispensed with.[2]The background to this application reveals the existence of a phenomenon which is by no means uncommon. The Applicant, whom I shall refer to as the husband, is English and the Respondent, whom I shall refer to as the wife, is American. They were married in the presence of witnesses only in Connecticut on 29 April 1999. However, they wished there to be a larger ceremony at which their family and friends could attend. Rather than arranging for some kind of ceremony of blessing, they in fact went through a second ceremony of marriage on 30 May 1999 at a hotel in England which was attended by family and friends and, no doubt, followed by a wedding party. That second ceremony resulted in the parties’ marriage being registered at the General Register Office of England and Wales.[3]As I have said this phenomenon is not uncommon. Quite often parties marry abroad but wish to have a grander ceremony here and therefore go through a second actual marriage ceremony. It is highly undesirable because the second marriage ceremony must result in false representations being made to the Registrar of Marriages. Formal representations need to be made to the Registrar of Marriages, I believe to be verified on oath, that neither of the parties is already married and of course it is a fact that, by the words of the ceremony itself, the parties have to declare that they know of no lawful impediment why they should not be married. That must have happened here and those representations must have been false because of course, at the relevant time, they were already married to each other. They are not false representations with any social consequence as they affect only themselves, but nonetheless the marriage laws of this country are there to be obeyed and it is highly regrettable that in this case - and I believe it is likely to have happened in other cases – false representations should have been made in order to satisfy the social wishes of the parties. Better, I suggest, it would have been for them to have arranged for a non-legal, non-formal ceremony of blessing of their prior union in Connecticut on 29 April 1999.[4]The marriage broke down and was dissolved by the Superior Court of Connecticut on 24 June 2004. However, no mention was made of the English ceremony of marriage during those proceedings. All financial matters were resolved in America at the time of divorce.[5]It is trite law that you can only have one marriage. If you are married in country A, a subsequent ceremony of marriage in country B is of no legal effect unless the ceremony in country A can be demonstrated, for the purposes of our law, as being void or of no legal effect. Whilst the law admits of the possibility of limping marriages and indeed limping divorces, as described in the decision of Mr. Justice Bodey in Hudson v Leigh [2009] 2 FLR 1129, and in his earlier decision in D v D [2006] 2 FLR 825, there is no status recognised in law of being twice validly married under two chronologically separated marriage ceremonies in different places (unless, of course, there had been an intervening divorce).[6]It may therefore be wondered why the husband seeks the declaration that he does, namely that the marriage here did not subsist on and after the date of the Connecticut divorce, namely 24 June 2004. His reason is given in his grounds for application in his application dated 14 October 2011, namely:
“I am concerned that, particularly in the event of my premature death, confusion or complication may arise for my family as a result of the fact that the English ceremony was not referred to in the Connecticut proceedings.”
[7]It might have been thought to be more apt that should confusion or complication in fact arise for the husband’s family in the event of his premature death, and his executors should encounter some kind of probate issue, arising from the fact that the English marriage ceremony was not referred to within the Connecticut proceedings, for that eventuality to be addressed by an application to the Court at that point. However, as a precautionary measure, the husband seeks the declaration from me.[8]As to whether the declaration that he seeks, which is pursuant to section 55(1)(c), is the apt measure leads me to consider paragraphs 81 to 85 of the judgment of Mr. Justice Bodey in Hudson v Leigh where, in very different circumstances, he held that an equivalent application was:
“… wholly impermissible as being a device to get round section 58(5) (which outlaws any declaration that a marriage was at its inception void).”
[9]In that case, the parties went through a ceremony which had all the hallmarks of marriage in South Africa on 23 January 2004 to satisfy the religious wishes and feelings of the female spouse in that case, but which was nonetheless intended by the parties to be of no legal effect in circumstances where it had been agreed that they would be formally, legally married in England later, but where that formal, legal marriage never took place. In those circumstances, it was held by Mr. Justice Bodey that the male spouse’s application under section 55 was wholly inappropriate, but nonetheless the Court retained power, under its inherent jurisdiction and the Rules of the Supreme Court, to make a free standing declaration that the South African marriage ceremony did not create the status of marriage.[10]I am concerned – and I have not had contrary argument – that such an objection might be made to the relief that is sought in this case, but I am on balance persuaded that, in circumstances where the right to relief for financial remedy has been taken and exhausted in America, the policy ground that underpins the prohibition in section 58(5) does not apply here and that it would be appropriate to make my declaration under the statutory provision. However, I intend to bolster that by a free standing further declaration in the terms which I will set out below.[11]The application has been served as the rules require on the Treasury Solicitor, who has consulted counsel and written a full letter dated 12 September 2011 which says this at paragraphs 13 and 14:
“13. Taking into account all of the above, we believe that a declaration under section 55(1)(c) of the Family Law Act 1986 is misconceived. For a Court to make a declaration that the English marriage did not subsist on or after the date of the divorce (24 June 2004) it would have to be persuaded that two legally valid marriages can subsist in parallel and that the English marriage was not void at its inception. For the reasons set out above, we do not believe that such an approach is possible. 14. In the circumstances, we believe that your client should be applying for a decree of nullity under sections 1(5) and 15 of the Matrimonial Causes Act using the procedure set out in Part 7 of the Family Procedure Rules 2010 in relation to the marriage that he and his wife celebrated in the UK, rather than a declaration.”
[12]In response to that letter, and indeed in the note of counsel today, it is suggested that this approach is legally erroneous. It is said at paragraph 8 of counsel’s note:
“In particular, it confuses the validity of the marriage with the validity of the ceremony. According to the Matrimonial Causes Act 1973, only a marriage (not a ceremony) can be declared a nullity. Here there is only one marriage which was created by the first ceremony. A decree of nullity would be clearly inappropriate because the parties were undoubtedly lawfully married and the marriage was therefore valid. The American ceremony on 29 April 1999 and the American decree of divorce on 24 June 2004 both complied with the necessary formalities validly to alter the parties’ marital status. By contrast, the English ceremony was ‘a nothing’ because it did not affect their status.”
[13]Conclusion In my judgment, the English ceremony was of no legal effect whatsoever. It was as much a charade or play acting as was the case in Hudson v Leigh. It did not create a second marriage; nor was it of such a nature and character to be such as to attract a decree of nullity. In his judgment in Hudson v Leigh in paragraph 79, Mr.

Justice Bodey said:

“In the result, it is not in my view either necessary or prudent to attempt in the abstract a definition or test of the circumstances in which a given event, having marital characteristics, should be held not to be a marriage. Questionable ceremonies should I think be addressed on a case by case basis taking account of the various factors and features mentioned above, including particularly but not exhaustively: (a) whether the ceremony or event set out or purported to be a lawful marriage; (b) whether it bore all or enough of the hallmarks of marriage; (c) whether the three key participants, most especially the officiating official, believed, intended and understood the ceremony as giving rise to the status of lawful marriage; and (d) the reasonable perceptions, understandings and beliefs of those in attendance. In most if not all reasonably foreseeable situations, a review of these and similar certain considerations should enable a decision to be satisfactorily reached.”
[14]In circumstances where both the husband and the wife here must have known that the ceremony they were going through in England on 30 May 1999 did not confer on them the status of marriage because they were already married, it is plain to me that, applying the factors mentioned by Mr. Justice Bodey and specifically the factor at (c), the Court must conclude, and should declare, that that ceremony was of no legal effect and was a non-marriage.[15]In the future, I am anticipating that applications for the declaration that I am making in this case will be unnecessary because any parties finding themselves in a comparable position to that obtaining here will be able to point to the terms of this judgment to any authority which questions the status of the second ceremony to demonstrate that it was of no legal effect whatsoever.[16]I therefore in this case – and I hope it will be the last such case – declare, pursuant to section 55(1)(c) of the Family Law Act, that on and after 24 June 2004 this marriage did not subsist and I further declare, pursuant to the Court’s inherent powers, that at all times the ceremony held in England on 30 May 1999 was of no legal effect. __________

Cited in 1 later judgment