Ezinne Uchechukwu-Onwubiko v Ihedinma Onwubiko & Ors

Where the validity of a later marriage depends on whether an earlier overseas marriage was dissolved, the party relying on the dissolution bears the initial burden of proving, on the balance of probabilities, a divorce which is effective under the law of the country concerned and satisfies the statutory recognition conditions.

Evidence that a marriage had broken down, that family members discussed divorce, or that purported documents exist is insufficient without reliable proof of a valid dissolution. False documents do not necessarily prove that the underlying event did not occur, but they require the court to assess the remaining evidence with care. A marriage entered into while an earlier lawful marriage subsists is void under the Matrimonial Causes Act 1973.

The proceedings arose from a dispute between the deceased’s fifth wife and his second wife concerning the deceased’s body, estate, next-of-kin status and funeral arrangements. The fifth wife sought declarations that her marriage was valid and that the earlier marriage had ended before their marriage in 2009. The second wife maintained that no formal divorce had occurred and that the later marriage was bigamous.

The court considered evidence concerning Nigerian statutory and customary marriage and divorce, including alleged customary-court records, documents supplied to the Home Office, correspondence between the deceased and his father, and a report by a panel of retired Nigerian Customary Court of Appeal judges. The central issue was whether the fifth wife had proved a divorce which English law was required to recognise.

1. Burden and issue. The fifth wife bore the initial burden of proving, on the balance of probabilities, that the second wife’s marriage to the deceased had ended in a valid divorce recognised under sections 45 and 46 of the Family Law Act 1986. If that burden had been discharged, the burden would have shifted to the second wife to disprove the validity of the later marriage.
2. Recognition of overseas divorce. A judicial dissolution by a Nigerian Customary Court would constitute proceedings for the purposes of section 46(1), but recognition still required proof that the divorce was effective under Nigerian law and that the statutory conditions were met. The court found no reliable evidence that any divorce had occurred. The contemporaneous emails showed efforts to obtain a divorce, but also showed that the deceased was still seeking documentary proof and later relied on an affidavit and a forged decree absolute.
3. False documents and evidence. Applying the principle in R v Lucas [1981] QB 720, the court treated false documents as requiring caution but not as conclusive proof that the event they purported to establish had not occurred. The court accepted the panel’s findings that the later Customary Court records contained pasted signatures, incorrect dates and a judgment superimposed on an unrelated judgment. The records were not reliable proof of a judicial divorce.
4. Conclusion and declarations. The fifth wife failed to discharge the burden of proving a divorce. The second wife therefore remained lawfully married to the deceased when he purported to marry the fifth wife. Under section 11(b) of the Matrimonial Causes Act 1973, the fifth wife’s marriage was void for bigamy. The court declared that the earlier marriage never ended in divorce, that the later marriage was invalid, and that the second wife was the surviving spouse and next of kin.