Alfonso-Brown v Milwood

A customary marriage requires the parties’ common intention and consent to become married. A ceremony may contain features associated with marriage, but those features do not establish a marriage where one party did not understand or intend that the ceremony should have that effect. The burden rests on the party asserting that a marriage was celebrated. Where the evidence shows only an engagement ceremony, ambiguous conduct, and no sufficiently cogent evidence of mutual consent to marriage, the court will find that no marriage arose.

The petitioner sought matrimonial relief based on a traditional ceremony held in Accra, Ghana, in December 1997. She contended that the ceremony created a customary marriage, which was void because the respondent remained married to another woman, and that she was therefore entitled to a decree of nullity and financial claims.

A previous decision by Baron J established that the respondent’s earlier marriage subsisted at the relevant date and dismissed the prayer for dissolution, while permitting amendment to seek nullity. The central issues were whether the Ghanaian ceremony would ordinarily constitute a Ga customary marriage and whether the respondent understood and intended that he was marrying the petitioner.

1. The petition failed. The petitioner did not establish that a marriage ceremony had been performed which was void solely because of the respondent’s subsisting marriage. Her burden of proof was not discharged.
2. The evidence, including the video recording and expert evidence, established that the principal part of the event was a customary engagement ceremony. References to dowry or marriage money, the exchange or placement of rings, the prayer, the kiss, the flowers and the cake-cutting were not sufficiently specific to prove a marriage. The video and the presents repeatedly described the event as an engagement.
3. A necessary constituent of a customary marriage was the agreement and consent of both parties to become married. The court accepted the expert evidence that consent was essential to the customary-law contract. The respondent’s conduct during the brief final part of the event was not unequivocally referable to marriage rather than an elaborate engagement celebration.
4. The respondent did not understand what was being said or done on his behalf, was not provided with a reliable translation, and had no intention of marrying the petitioner on that day. He would not have consented to marriage in those circumstances. The court also found that the petitioner lacked the relevant intention, as shown by the surrounding circumstances, including the repeated references to engagement.
5. Even if the burden had shifted to the respondent after proof that the ceremony would ordinarily result in marriage, he had established his lack of understanding and consent. The petitioner's attempt retrospectively to characterise the engagement as a marriage therefore failed.

The judgment describes an earlier decision by Baron J in the same proceedings. That decision declared that the respondent was incapable of entering into a valid marriage with the petitioner in December 1997 because his earlier marriage subsisted, dismissed the prayer for dissolution, and gave leave to amend to seek a decree of nullity. The present court determined the remaining factual and customary-law issues.