M-T v T

A party cannot found divorce, nullity or financial-relief proceedings on a marriage which has not been established. Where foreign proceedings were stayed so that the foreign court could determine marital status, comity and procedural fairness may prevent the issue being reopened domestically. The court may dismiss proceedings under its inherent power where continuation would be an abuse of process, including where the claim formed part of a dishonest campaign to obtain relief. Maintenance pending suit is generally not recoverable merely because the order is later discharged, although payments may be taken into account in a final award or costs order, and recovery may be possible through an action based on fraud.

The parties had conducted long-running divorce, nullity and ancillary-relief proceedings concerning alleged customary marriages in Nigeria in 1993 and 2002. The English proceedings had been stayed so that the Nigerian courts could determine the parties’ marital status. The Nigerian courts found that the 1993 marriage had not been established, while the Court of Appeal in Nigeria set aside the finding concerning the alleged 2002 customary marriage and made no effective finding that such a marriage existed. The court determined applications concerning the amended petitions, proceedings under the Matrimonial and Family Proceedings Act 1984, repayment of maintenance pending suit, freezing orders and costs.

1. The 2003 amended petition. The Nigerian proceedings established that no customary marriage ceremony had been proved in 1993 and that no marriage by repute could be presumed. The petition therefore had no foundation for divorce, nullity or financial relief and was struck out.
2. The 1984 Act proceedings. The petitioner had neither established the alleged 2002 customary marriage nor obtained an effective and subsisting overseas decree dissolving or annulling it. Permission to bring proceedings under the Matrimonial and Family Proceedings Act 1984 was set aside. The question whether a Nigerian declaration of nullity would satisfy section 12(1) was academic.
3. The 2004 amended petition. The first-instance Nigerian finding could not simply be adopted because it had been set aside on appeal and was not binding. The petitioner had received a full and fair opportunity to establish the marriage in Nigeria. Reopening the issue in England would conflict with the stay, comity and fairness. The proceedings were also an abuse of process under the inherent power recognised in Taylor v Lawrence [2003] QB 52, having regard to the petitioner’s dishonest campaign, the false 1993 marriage case and the absence of a clear independent case concerning 2002.
4. Maintenance pending suit. The court declined to order repayment. Moore v Moore [2009] EWCA Civ 1427 supported the general conclusion that the court had no power, or would not ordinarily exercise power, to order repayment. Payments could nevertheless be reflected in a later financial award or costs order, and recovery following fraud would require an appropriate action.
5. Costs and freezing orders. The freezing orders were discharged. The petitioner was ordered to pay 80% of the respondent’s costs of the petitions and of the 1984 Act proceedings, assessed on the standard basis if not agreed.

Not stated in the judgment.