Adepoju v Akinola

A customary marriage celebrated abroad is void under English law where, at the time of the ceremony, either party is domiciled in England and Wales and remains party to a prior subsisting marriage. The party asserting a divorce bears the burden of proving it. In probate proceedings, factual disputes are determined on the balance of probabilities, but the court must remain alert to the interests of third parties and creditors. Where the person otherwise entitled to administer an estate is unreliable and the parties are engaged in serious mutual allegations of interference, those matters may constitute special circumstances justifying appointment of an independent administrator under the Senior Courts Act 1981.

The claimant, the deceased’s daughter, sought declarations concerning her status as next of kin, the validity of the defendant’s alleged customary marriage to the deceased, and the defendant’s interest in the estate. She also sought a grant of letters of administration. The defendant claimed to be the deceased’s widower, relying on a Yoruba customary ceremony in Nigeria in 2006. He alternatively relied on his alleged status as the father of the deceased’s son, his relationship with the deceased, and an alleged equitable interest in estate assets.

The central issues were whether the defendant had divorced his earlier English-law wife before the 2006 ceremony, whether the ceremony otherwise constituted a Yoruba customary marriage, and who should administer the estate.

1. Validity of the alleged marriage. The defendant bore the burden of proving that he had divorced Mrs Akinola. His evidence was indirect and unsupported by documentary evidence. The meeting recording, his failure to plead the divorce properly, and his failure to call Mrs Akinola justified an adverse inference. The court was not satisfied that any divorce had occurred.
2. Both parties were domiciled in England and Wales in 2006. Accordingly, under section 11(d) of the Matrimonial Causes Act 1973, the alleged polygamous marriage was void because the defendant remained party to a prior subsisting marriage.
3. On the balance of probabilities, a Yoruba customary marriage ceremony had nevertheless taken place. The evidence established the features of an Idana, including the presence of both families, payment of the bride price, and presentation of the bride by her father. The ceremony would have been valid under Yoruba custom if the defendant had been free to marry, but it could not be recognised as valid in England.
4. The defendant was therefore not the deceased’s widower and could not obtain letters of administration under rule 22 of the Non-Contentious Probate Rules 1987, or a share under section 46 of the Administration of Estates Act 1925. His alternative claims were either unproved or not pleaded and argued.
5. The claimant’s declarations could not all be granted. Section 58(5) of the Family Law Act 1986 prevented a declaration that the marriage was void at inception. The claimant’s entitlement as next of kin required consideration of the deceased’s son, and the defendant’s possible constructive-trust claims prevented a declaration that he had no interest in the estate.
6. The claimant should not administer the estate because her evidence was materially unreliable and she had deliberately lied to the court. The conflict, mutual allegations of interference, and interests of creditors constituted special circumstances under section 116(1) of the Senior Courts Act 1981. The court was minded to appoint an independent administrator, subject to further argument on identity.