AAM v KG

An appellate court should not interfere with a trial judge’s assessment of witnesses and documentary evidence unless the decision was wrong or affected by a material procedural irregularity. The burden of proving the fact relied on remains with the party asserting it. A judge may consider the absence of a satisfactory explanation as part of the overall evidential assessment without shifting that burden. An ex tempore judgment may be sufficient if, read fairly and as a whole, it explains the decision. The omission of a minor piece of contradictory evidence is not material where the evidence plainly carried little weight.

The husband appealed against orders made by HH Judge Sharpe on 8 August 2016 and 27 January 2017. The first order granted a decree of nullity on the basis that, when the parties married in England, the husband was already married in Bangladesh. The second refused his application under Matrimonial Causes Act 1973, s 9, to rescind the decree.

The husband challenged the trial judge’s treatment of witness evidence, documents from Bangladesh, the burden of proof, procedural omissions and the adequacy of his reasons. The central issue was whether the judge’s findings and orders were wrong or affected by a material procedural irregularity.

1. The appeals against the orders of 8 August 2016 and 27 January 2017 were dismissed. The husband had not demonstrated that either decision was wrong or that there had been a material procedural irregularity.
2. The burden of proving that the husband was already married rested on the wife. The judge’s consideration of the husband’s failure to provide a satisfactory explanation for his secrecy did not transfer or reverse that burden. It formed part of the assessment of all the evidence.
3. The trial judge was entitled to prefer the oral evidence of the Imam and other witnesses to documents indicating that no marriage was registered in Bangladesh. He had not disregarded the documents altogether, but had taken them into account and explained why he preferred the oral evidence.
4. Assessment of witness credibility and reliability was primarily for the trial judge. The appellate court was not in a position to conduct the same evaluation. The judge’s acceptance of the Imam’s evidence was adequately explained, and the similarities between witness statements did not require identical treatment of the witnesses.
5. The failure to mention the evidence of one witness did not amount to a material omission. Her contradictory evidence emerged only briefly, was inconsistent with her statement and was plainly treated as carrying little weight. The failure to refer to it expressly would have been preferable, but did not undermine the decision.
6. The judge’s ex tempore reasons, read fairly and as a whole, were sufficient. The additional documentary evidence produced at the later hearing did not require the judge to revisit his earlier assessment, and his concerns about authenticity and the absence of supporting evidence were adequately explained.

• High Court (Family Division): appeals against HH Judge Sharpe’s orders of 8 August 2016 and 27 January 2017 dismissed.
• Swansea Family Court: decree nisi of nullity granted on 8 August 2016 and made absolute on 21 September 2016.
• Swansea Family Court: application under s 9 of the Matrimonial Causes Act 1973 to rescind the decree dismissed on 27 January 2017.