B v B (Declaration as to Marital Status)

A customary marriage celebrated overseas may be a marriage which is defective for non-compliance with foreign civil formalities, yet capable of later validation. Such a ceremony is not a non-qualifying ceremony. Under English private international law it is treated as a void marriage where the foreign law permits later ratification or validation.

Where the statutory conditions are met, the appropriate remedy is a nullity order. The court cannot make a declaration that the marriage was void at inception under section 58(5) of the Family Law Act 1986.

The husband applied under section 55 of the Family Law Act 1986 for declarations concerning the parties’ marital status and recognition of an alleged customary divorce in Cameroon. The parties accepted that they had undergone a ceremony but disputed when and where it occurred, whether it created a marriage, whether it had been dissolved, and related factual matters.

The court found that the parties underwent a customary marriage ceremony in Cameroon in September 2008. No 2003 ceremony or 2022 customary divorce ceremony took place. The central issue was the legal effect in England and Wales of the 2008 ceremony, which had not acquired civil recognition under Cameroonian law.

1. Factual findings. The parties underwent a customary marriage ceremony in Village B, Cameroon, in September 2008, with the husband represented by proxy. No January 2003 ceremony, civil registration, or 2022 customary divorce ceremony took place. The court preferred the wife’s account on the balance of probabilities.
2. Cameroonian law. The expert evidence established that customary marriage was recognised sociologically but required further civil formalities for civil effect. Under the 1981 Ordinance, and subsequently the 2024 Law, those formalities were evidential or administrative. They did not require a further civil ceremony. The 2008 ceremony was duly concluded under customary law, but it had no civil status because the required steps were not taken.
3. English private international law. Applying the principles summarised by Mostyn J in Tousi v Gaydukova [2023] EWHC 404 (Fam); [2024] 1 WLR 118, the court treated the ceremony as a marriage defective for want of foreign formalities but capable of later ratification or validation. It was therefore a void marriage under English law, not a non-qualifying ceremony.
4. Relief. Section 58(5) of the Family Law Act 1986 prevented the court from making the declaration sought. The appropriate remedy was a nullity order, and either party could apply for one. No order was made on the application.
5. Disclosure. Given the parties’ consent or lack of objection, and the Secretary of State’s legitimate interest in the adverse findings, an unredacted copy of the judgment was directed to be sent to the Secretary of State and officials. Wider disclosure of material filed in the proceedings required a further application.

The judgment was a first-instance decision of the High Court (Family Division). It records earlier County Court proceedings concerning property ownership, which were dismissed summarily on the basis that matrimonial financial remedy proceedings were appropriate.