Ogunware v Ogunware

Under Part III of the Family Law Act 1986, a declaration that a marriage “did not subsist” concerns the continuation of a marriage which previously existed. It does not encompass an assertion that no marriage ever took place. The statutory scheme provides an exhaustive list of permissible declarations. On dismissal of an application, the court cannot make a declaration that was not sought, and no court may declare that a marriage was void at its inception. Where the application falls outside those forms, it must be dismissed without deciding whether the alleged marriage was genuine or valid.

The applicant applied in Form D70 for declarations concerning an alleged marriage in Lagos, Nigeria, said to have taken place on 30 December 2006. He contended that no marriage ceremony had occurred and that the purported marriage certificate was bogus. He also sought a declaration that a Nigerian divorce certificate was not recognised because no marriage had existed.

The court accepted that it had jurisdiction because the applicant had been habitually resident in England and Wales. The central issue was whether the declarations sought fell within the statutory forms available under Part III of the Family Law Act 1986.

1. The application was dismissed. The applicant’s case was that no marriage had ever taken place. It was not an application for a declaration that a marriage was valid at inception, had subsisted on a specified date, had not subsisted on a specified date, or that a foreign divorce was or was not entitled to recognition.
2. Section 55(1)(c) of the Family Law Act 1986 permits a declaration that a marriage did not subsist on a specified date. The word “subsist” denotes the continuation of something that previously existed. It cannot ordinarily describe a status which is alleged never to have existed at all. The application therefore fell outside section 55(1)(a) to (e) (paras [22]-[25]).
3. Sections 58(3) and 58(4) prevented the court from making a different declaration which had not been sought or from making, otherwise than under Part III, a declaration available under that Part. Section 58(5)(a) also expressly prohibited a declaration that a marriage was void at its inception. Although the applicant contended that there had been no marital event rather than a void marriage, the application came nearest to that prohibited category. The court therefore had no power to grant any declaration (paras [26]-[31]).
4. The court made no finding on whether a marriage ceremony had occurred or whether the alleged marriage was valid. That issue could be considered on an application by the respondent for an appropriate declaration. The judge observed that the courts of Nigeria were the forum best equipped to determine what had occurred in Lagos and the true state of the marriage register (paras [32]-[33]).