S-T (formerly J) v J

An applicant was not automatically barred from seeking financial relief after a decree of nullity merely because the purported marriage had been procured through perjury and grave deception. The public policy rule in bigamy cases is confined to cases where the purported marriage itself constitutes the crime founding the claim.

Under section 25 of the Matrimonial Causes Act 1973, however, the court must consider all the circumstances. A sustained deception concerning a matter fundamental to the other party’s consent may weigh so decisively against relief that dismissal is inevitable, notwithstanding the applicant’s needs, contributions and financial disadvantage.

The parties underwent a ceremony of marriage, although the defendant was a female-to-male transsexual who retained female genitalia and was legally female. The plaintiff was unaware of the defendant’s sex at birth and would not have participated in the ceremony had she known the truth. The purported marriage was later declared void under section 11(c) of the Matrimonial Causes Act 1973.

The defendant applied for periodical payments, a lump sum and property adjustment. Hollis J dismissed those claims on a preliminary issue, finding that the defendant had knowingly made a false declaration that there was no lawful impediment to the marriage and that public policy barred the application. The defendant appealed. The principal questions were whether perjury had been proved, whether the claim was barred at the threshold, and whether any award could nevertheless be made under section 25.

Appeal dismissed unanimously. Ward LJ, Potter LJ and Sir Brian Neill agreed that the evidence justified Hollis J’s finding that the defendant knowingly made a false declaration that there was no lawful hindrance to the proposed marriage. The defendant’s concealment of his sex at birth, anatomy and incomplete treatment supported the conclusion that he knew he could not lawfully marry the plaintiff.

1. Majority reasoning on the preliminary bar. Potter LJ and Sir Brian Neill held that the claim was not barred in limine. Whiston v Whiston [1995] Fam 198 should be confined to knowing bigamy, where the purported marriage was itself the criminal act and the necessary foundation of the financial claim. Here, the perjury facilitated the ceremony but was collateral to it. Parliament had conferred a discretionary jurisdiction following every statutory category of nullity and required consideration of all the circumstances.

2. Exercise of the statutory discretion. The defendant’s application was nevertheless bound to fail under section 25 of the Matrimonial Causes Act 1973. The defendant had sustained a grave deception about a matter pivotal to the plaintiff’s consent. That deception enabled him to obtain the status and potential financial remedies of a spouse which would not have been available upon honest cohabitation. His needs, contributions and financial disadvantage could not outweigh that conduct. The children’s welfare did not require any payment to him.

3. Ward LJ’s alternative route. Ward LJ considered that the sufficiently serious perjury was closely connected to the claim and that the broader ex turpi causa principle also barred the application. He agreed alternatively that, if the section 25 discretion arose, no relief could properly be granted.

The order dismissing the financial claims was therefore upheld. There was no order as to costs, and permission to appeal to the House of Lords was refused.

1. Court of Appeal: The appeal was dismissed unanimously. By a majority, the court held that the claim was not barred at the threshold but that no ancillary relief could properly be granted under section 25 of the Matrimonial Causes Act 1973.
2. High Court, Family Division: Hollis J determined the preliminary issue in the plaintiff’s favour and dismissed the defendant’s claims for ancillary relief on public policy grounds.
3. Brighton County Court: An undefended decree of nullity was granted and subsequently made absolute because the parties were not respectively male and female.