K v K

A ceremony which is incapable of recognition as a valid marriage may nevertheless be a void marriage capable of founding a decree of nullity. The distinction between a void marriage and a non-marriage depends on the circumstances of the ceremony and must be assessed case by case. The parties’ intentions, beliefs and understanding, particularly those of the officiating person, are material. A potentially polygamous ceremony is not automatically excluded from nullity relief. Where the ceremony purported to create a marriage but failed because of an existing marriage or non-registration, a decree of nullity may be appropriate.

The parties underwent an Islamic ceremony in London in 1999, which was not recognised as a valid marriage. The applicant later alleged that they underwent a further Islamic marriage ceremony in Pakistan in August 2003. The respondent denied that the ceremony occurred and alleged that the marriage deed was forged.

The court accepted the applicant’s evidence that the later ceremony occurred and that both parties intended and believed it to create a lawful marriage. The central issue was whether the 2003 ceremony was a non-marriage, permitting no financial remedy claim, or a void marriage capable of founding a decree of nullity.

1. Decree of nullity. The court found that the August 2003 telephone arrangements and ceremony at the respondent’s property occurred. The marriage deed was signed in the presence of witnesses, and the applicant honestly believed that she had entered into a lawful marriage.
2. The ceremony did not create a valid marriage recognised in England and Wales. The respondent was probably still married to his first wife, the necessary consent for a potentially polygamous marriage had not been obtained, and the Nikkah had not been registered pursuant to Rule 5 of the Muslim Family Ordinance.
3. The court considered the distinction between a valid marriage, a void marriage and a non-marriage. It accepted the case-by-case approach described in Dukali v Lamrani [2012] EWHC 1748, including the relevance of whether the parties and officiating person intended and understood that the ceremony would create the status of lawful marriage.
4. The parties’ intention and belief were highly material. Although the ceremony was invalid, its apparent character as a ceremony intended to create a marriage meant that it was a void marriage capable of founding a decree of nullity. The court also accepted the proposition derived from Rampal v Rampal (No 2) [2001] 2 FLR 1179 that an actual bigamist marriage is resolved by nullity, and that potential polygamy was not itself a bar.
5. The petition for a decree of nullity was granted and listed for pronouncement.

First-instance decision. No earlier decision in the procedural history is stated.