MO v RO & Anor

A declaration of marital status is determined on the ordinary balance of probabilities. Marriage, although a matter of status, attracts no special standard of proof. The court must identify what happened, rather than what ought to have happened, and may assess each party’s evidence in the light of lies, inconsistencies, documentary material and surrounding circumstances. A customary marriage depends on the applicable customary requirements, not necessarily on a marriage certificate. For domicile, residence in England and Wales with an intention to remain indefinitely does not establish a change of domicile unless the person also lacks a genuine intention to return permanently to the domicile of origin.

The applicant sought a declaration under section 55(1)(a) of the Family Law Act 1986 that she had married the first respondent in a customary ceremony in Lagos on 20 June 1977. The first respondent denied that any marriage had taken place and alleged, alternatively, that any polygamous marriage would have been void under section 11(d) of the Matrimonial Causes Act 1973.

The parties had lived together in England and raised six children. The court considered extensive documentary and oral evidence, including expert evidence on Nigerian law. Earlier Nigerian proceedings had resulted in a declaration that no marriage existed, but the English court was not bound by that conclusion because the Nigerian hearing had been attended by only one party and the English court had heard substantially fuller evidence. The central issues were whether a customary or civil marriage had occurred and, alternatively, whether any such marriage would have been void.

1. Declaration. The court declared that the parties were not and had never been married. The applicant had not proved, on the balance of probabilities, that a customary or civil ceremony took place in 1977 or at any other time.
2. The court treated the parties’ evidence with considerable caution. Both had given deliberately untrue evidence on significant matters. The applicant’s sustained use of another woman’s identity, the inconsistent accounts of the alleged ceremony, doubts concerning the affidavits attributed to her uncles, the absence of wedding photographs or other contemporaneous evidence, and the passport evidence substantially undermined her case. The respondent’s lies did not require the court to accept the applicant’s evidence.
3. The fact that the parties lived together as husband and wife, referred to each other in those terms, raised children and were socially regarded as a family did not establish that a marriage had taken place. The court distinguished the factual reality of their relationship from legal marital status.
4. The court accepted the expert evidence that a Nigerian customary marriage did not require registration to be legally binding. The absence of a certificate was therefore not decisive, but the evidence still failed to establish the customary requirements or the alleged ceremony.
5. Marriage is a matter of status, but there is no special standard of proof. The ordinary balance of probabilities applied. The guidance in R v Lucas was relevant: a lie about one matter does not necessarily mean that the person is lying about everything, but the evidence must be assessed in context.
6. As an alternative issue, the court assumed in the respondent’s favour that any 1977 marriage would have been polygamous. Under section 11(d) of the Matrimonial Causes Act 1973, such a marriage would be void only if the respondent was then domiciled in England and Wales. His domicile of origin was Nigeria. Residence in England with an intention to remain indefinitely was insufficient because he retained a genuine intention to return permanently to Nigeria. He therefore remained domiciled in Nigeria, so any such marriage would not have been void on that ground.

This was a first-instance declaration of marital status. The judgment records earlier possession proceedings, divorce-related applications in the Principal Registry, and Nigerian proceedings, but no appeal from an earlier judgment was determined by this court.