Azizi v Aghaty (Rev 1)

In financial-remedy proceedings arising from a marriage later accepted to be void, the court must distinguish between an objectively void marriage and the criminal offence of bigamy. Bigamy requires mens rea, and an honest and reasonable belief in facts which would make the second marriage lawful provides a defence. Findings of bigamy or dishonesty must be supported by reliable evidence before they can materially influence the discretionary distribution of property or maintenance. A striking financial order based on unsupported or mistaken findings cannot stand and should be set aside for rehearing. The absence of an interpreter does not automatically establish fatal unfairness where the judge was satisfied that the litigant could participate adequately, but the court should ensure interpretation where language difficulties may materially affect participation.

The wife appealed from a deputy district judge’s decision on financial remedies following proceedings between the parties. The parties had gone through a marriage ceremony in England while the wife’s earlier Danish marriage remained formally subsisting. They accepted that the later marriage was void, although they disputed the husband’s knowledge of the earlier marriage and the wife’s state of mind.

The deputy district judge transferred the jointly owned former matrimonial home to the husband, awarded him 75 per cent of a disputed Iranian flat, and made no order concerning maintenance. She treated the wife as having committed bigamy and as having lied about the earlier marriage. The central issues were whether those findings were reliable and whether the resulting financial order could stand.

1. Appeal allowed. The deputy district judge’s decision and order were set aside. The parties’ financial claims were remitted for rehearing by a different, full-time district judge, with maximum judicial continuity.
2. The deputy district judge’s findings that the wife had committed bigamy and had lied until forced to admit the earlier marriage were not supported by the evidence. The evidence had been inadequately analysed, and the judge had treated an essentially interrogative letter from the wife’s solicitors as a denial of the earlier marriage when it did not say that.
3. There is an important distinction between being party to a marriage which is objectively void because one party remains married to another person and committing the criminal offence of bigamy. Bigamy requires mens rea or intent. An honest and reasonable belief in a fact which, if true, would make the second marriage lawful is a defence. The wife’s asserted belief that the husband knew of the Danish marriage and had told her that she could lawfully marry required proper consideration.
4. The findings were fundamental to the exercise of discretion concerning the properties. Since they were unreliable, the financial order was unsound. The court therefore did not need to determine the wife’s additional arguments concerning the section 25 factors.
5. The absence of an interpreter was not, standing alone, a fatal procedural unfairness because the deputy district judge had been satisfied that the wife could speak and understand English adequately. Nevertheless, the wife’s language difficulties formed part of the background, and an official Farsi interpreter was directed to attend all further hearings.
6. The existing decree nisi of divorce was not to be made absolute. The procedural matters were also remitted so that appropriate orders could be made to rescind the decree nisi, substitute a petition for nullity, and pronounce a formal decree of nullity in accordance with the procedural rules.

1. High Court (Family Division): appeal from the decision and order of a deputy district judge dated 20 January 2015. The appeal was allowed, the order was set aside, and the financial and procedural matters were remitted for rehearing.