Burns v Burns

Where a marriage celebrated abroad is invalid under the law of the place of celebration, that foreign law determines validity. It does not determine the remedy available in England and Wales. Once invalidity is established, the lex fori determines the consequences and available relief.

A marriage is not necessarily a non-marriage merely because a preliminary formal requirement was omitted. Where the parties intended to marry, possessed capacity, and participated in a ceremony satisfying the substantive local requirements, an omission such as obtaining the licence after the ceremony may be a technical defect which supports a decree of nullity. The court may then deal with the parties’ financial affairs under the nullity provisions of the Matrimonial Causes Act 1973.

The parties participated in a marriage ceremony in California on 10 June 2004. They obtained the necessary marriage licence only after the ceremony. Under the agreed Californian law, the marriage was invalid because the ceremony preceded the issue of the licence.

The wife initially petitioned for divorce under section 12B of the Matrimonial Causes Act 1973. After the husband challenged the validity of the marriage, she abandoned the divorce petition and amended it to seek a decree of nullity under sections 11 to 14. The husband argued that no decree was available because Californian law did not classify the marriage as void or voidable. The central issues were whether the wife could obtain a decree of nullity and whether ancillary financial relief remained available.

1. Factual findings. The court preferred the wife’s evidence. The ceremony, subsequent blessing and surrounding arrangements demonstrated a genuine intention to marry. The husband’s account that the ceremony was deliberately sham was improbable and unsupported. The parties and the officiant regarded the licence as associated civil paperwork, rather than a condition defeating the intended marriage.
2. Validity and remedy. Under sections 11 and 14 of the Matrimonial Causes Act 1973, the validity of a foreign marriage is determined by the applicable rules of private international law. Here, the relevant law was the lex loci celebrationis, namely Californian law. That law established that the marriage was invalid because the licence was issued after the ceremony.
3. Once foreign law has determined validity, the foreign law’s role is exhausted. The lex fori determines the implications of invalidity and the remedies available in England and Wales. The fact that Californian law did not describe this category of invalid marriage as void or voidable did not prevent an English decree of nullity.
4. The reasoning in Berthiaume v Dastous supported the distinction between the law governing validity and the law governing relief. The approach in Kassim v Kassim supported treating a decree of nullity as the appropriate formal recognition of an existing state of affairs.
5. The court rejected the suggestion that the ceremony was so deficient that it constituted a non-marriage incapable of attracting ancillary relief. The parties had capacity to marry and had fulfilled the substantive local requirements. The failure to obtain the licence before the ceremony was a technical defect, not a defect depriving the ceremony of the character of marriage.
6. Section 14 was directed to this situation. The amended petition was allowed and the court granted a decree nisi of nullity.

The judgment was a first-instance decision of the High Court (Family Division). The wife’s original divorce petition was amended, with leave, to seek a decree of nullity after the husband challenged the validity of the marriage.