Mendal v Mendal

A public-policy bar to ancillary relief after a void marriage is confined to culpable conduct. A second marriage during the subsistence of a previous marriage is void, but that fact alone does not establish the criminal offence of bigamy. The bar cannot apply where the applicant genuinely believed that the earlier marriage had ended and did not deceive the other party. On a second appeal, challenges to primary findings of fact and witness credibility do not satisfy the requirement of an important point of principle or practice, or another compelling reason.

Following a decree of nullity, the district judge made an ancillary relief order in favour of Miss Santana. He found that she genuinely believed her Brazilian divorce was final when she went through a marriage ceremony with Mr Mendal, and that she had not deceived him.

The circuit judge, His Honour Judge Meston QC, upheld those findings and the order. Mr Mendal sought permission to bring a second appeal, arguing that the marriage was bigamous and that the ancillary relief claim was barred by the public-policy principle discussed in Whiston v Whiston [1995] FLR 198. The central issues were whether the factual findings could be challenged and whether the public-policy bar applied despite the absence of knowledge and deception.

Application for permission refused. Lord Justice Hughes held as follows:

1. A second appeal may be entertained only where the case raises an important point of principle or practice, or there is some other compelling reason. A proposed appeal must also have reasonable prospects of success. Challenges to primary findings of fact and witness credibility cannot satisfy that threshold. The Court of Appeal must proceed on the factual findings made below, even where the matter was a first appeal. (paras [17]-[20])
2. The court distinguished a void marriage from criminal bigamy. Under Section 11 (b) of the Matrimonial Courses Act 1965, a marriage is void where either party was already lawfully married. The word bigamy is not required by the provision. Criminal bigamy, however, requires a guilty mind; a person who honestly and reasonably believes that the earlier marriage has been dissolved does not commit the offence. (paras [22]-[24])
3. The public-policy principle underlying Whiston v Whiston [1995] FLR 198 prevents a person profiting from his or her own culpable crime. The trilogy of authorities comprising Whiston, S-T v J [1998] FLR 103, and Rampal v Rampal [2002] FLR 85 established that the bar cannot apply unless the applicant knew that he or she had no right to marry and deceived the other party. Culpable deception was the minimum requirement.
4. The court left open the wider question whether ancillary relief might be barred where the applicant had guilty knowledge but the full scope of the principle was arguable. That issue could not assist the appellant because the unchallengeable findings were that Miss Santana lacked the relevant knowledge and had not deceived Mr Mendal. Any appeal would therefore be bound to fail. (paras [20]-[26])

Order: Application refused.

• Court of Appeal (Civil Division): Application for permission to bring a second appeal refused: [2007] EWCA Civ 437.
• Bournemouth County Court: The district judge made an ancillary relief order following a decree of nullity and found that Miss Santana genuinely believed her earlier divorce was final and had not deceived Mr Mendal.
• Circuit judge: His Honour Judge Meston QC upheld the district judge’s findings and order.