England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE - FAMILY DIVISION
(MR STEPHEN BELLAMY QC)

		Royal Courts of Justice Strand, London WC2A 2LL Wednesday, 27th June 2001

THORPE LJ:

1. The story of the relationship and marriage between Mr and Mrs Rampal, who I will hereafter refer to as the husband and the wife, has been the subject of judgments of the Family Division delivered by Hogg J on 18 April 2000 and Mr Bellamy QC, sitting as a Deputy High Court Judge, on 17 November 2000. The first judgment is reported at [2000] 2 FLR 763 and the second judgment is the subject of the present appeal.
2. I record the story briefly, drawing on these two judgments and particularly the findings of fact made by Mr Bellamy. The husband came to England from India in 1964 and has lived here ever since. However he has visited India periodically and on 15 December 1972 entered into an arranged marriage there. It proved of short duration, although during a subsequent visit to India in 1974 the husband fathered a daughter whom he did not thereafter see or maintain. On 13 November 1981 the husband was divorced in India.
3. Meanwhile in 1973 the husband responded to an advertisement by which the wife sought a relationship with a single man. After a while the husband moved into the wife's home and she conceived a child. That was 1975, the wife was 37 years of age and the pregnancy was therefore towards the end of her opportunity for motherhood. Despite the fact that the father of the child that she was carrying had a wife in India, as she well knew, she suggested that they went through a ceremony of marriage since, within the Indian community in Britain, it was unthinkable for her to have a child out of wedlock. As a spinster the wife had no difficulty in arranging the ceremony, making use of the husband's passport upon which he was described as a bachelor. The ceremony took place in June 1975 and shortly thereafter their only child, a daughter, was born.
4. The family was reasonably prosperous. The family home in West London was acquired in joint names in 1982 and accounted for approximately £150,000 of the family assets amounting in all to about £200,000. The balance lay in insurance policies and shares.
5. The marriage broke down in about 1997 and on 23 April 1998 the husband petitioned for divorce on the grounds of the wife's unreasonable behaviour. In July she filed an answer and cross-petition, admitting irretrievable breakdown and herself seeking divorce on the grounds of unreasonable behaviour. In February 1999 the suit was compromised and a decree nisi was pronounced on the wife's cross-petition on 26 May 1999, made absolute on 18 July 1999. Between those two decrees the husband issued a claim for ancillary relief asserting that the wife had taken financial advantage of him. Certainly in 1998 the matrimonial home had been transferred into the wife's sole name in disputed circumstances. Faced with this challenge, on 20 October 1999 the wife issued an application for the two decrees to be set aside and for leave to file an amended answer seeking a decree of nullity on the grounds that the marriage of 20 June 1975 was bigamous and therefore void. In advancing that application the wife falsely asserted that she had no prior knowledge of the husband's first marriage (beyond suspicions allayed in 1983) and no proof until stumbling on documents on 4 September 1999.
6. At the hearing before Hogg J the factual issue as to the date of the wife's knowledge was not explored. Hogg J quite rightly granted the relief sought on the simple basis that the husband admitted that the dissolution of his first marriage post-dated the second ceremony. Of course the wife's ulterior purpose in seeking the decree of nullity was to bar the husband's application for ancillary relief in reliance on the decision of this court in Whiston v Whiston [1995] Fam 198. Having reviewed that authority as well as the later case of S-T (formerly J) v J [1998] Fam 103, Hogg J noted that there was an unresolved issue as to whether the wife was also 'guilty of being a secondary party to the offence of bigamy'. She concluded:

"There should in my view be a full investigation before myself or a judge of this court where, if necessary, following a fact finding exercise and a decision, the matter could be re-argued in the event of both parties being guilty of wilfully and knowingly entering into a bigamous marriage."

In the event the investigation was conducted not by Hogg J but by Mr Bellamy.

7. Seemingly Mr Bellamy's only task was to determine whether the husband was truthful in maintaining that the wife had engineered the 1975 marriage with full knowledge of his status or whether the wife was truthful in asserting that the facts only became known to her on 4 September 1999. For Mr Bellamy recorded the following concession at page 3 of his judgment:

"Her counsel accepted the proposition of law as put forward by Mr Wagstaffe, that if the wife had the knowledge alleged, then the financial relief application of the husband should not be struck out."

8. To the same effect is the following passage at page 31:

"Mr Wagstaffe seeks to distinguish the case of Whiston, saying that there has been no deceit of an innocent party involved, because there was full knowledge on the part of the wife. This is a submission which counsel conceded without argument. Her submissions to me on behalf of the wife were based entirely on the facts and the findings of fact which the court should make and on credibility and not on the law. I have therefore not had what I would regard as full argument on this point."

9. Mr Bellamy heard much evidence not only from the parties but also from their daughter and from other witnesses. Despite the fact that he rejected the wife's case comprehensively and despite the fact that he had not heard full argument, nevertheless he went on to hold that the effect of the two decisions of this court to which I have referred was to debar the husband from applying for ancillary relief despite the fact that the wife was a prominent party, effectively inducing the bigamous marriage. Whether he was right so to hold is the sole issue in this appeal.
10. The appeal has been skilfully and extensively argued by Mr Scott QC for the husband and Mr Moylan QC for the wife. Mr Scott submits, in barest summary, that Whiston is a case decided on its extreme facts and does not lay down the universal rule debarring anyone guilty of the crime of bigamy. His fallback submission is that the advent of the Human Rights Act 1998 requires the court to revisit the decision in Whiston v Whiston. For were it applied against his client it would constitute a denial of his rights under Article 6. Mr Moylan asserts that Whiston v Whiston is clear authority for the proposition that anyone who knowingly contracts a bigamous marriage is debarred from claiming ancillary relief. Otherwise such a person would be in a better position than another long-term cohabitant who had not falsely acquired marital status. Mr Moylan also placed great emphasis upon the decision of the House of Lords in Tinsley v Milligan [1994] 1 AC 340 and particularly the speech of Lord Goff rejecting the public conscience test favoured by the majority in the Court of Appeal.
11. In order to resolve these submissions it is in my judgment necessary to look with great care at the two recent decisions of this court which are directly in point. I do not myself obtain any assistance from the authority of Tinsley v Milligan which I conceive to be completely authoritative only in the fields of contract and tort where the doctrine of ex turpi causa is invoked. In my opinion it is clear that a less rigid rule is applied to statutory claims and applications founded on a criminal act. Support for that proposition is to be found in the judgment of Donaldson LJ in Reg v Secretary of State for the Home Department Ex Parte Puttick [1981] 1 QB 767. He said at 772H:

"There is much authority on the circumstances in which the courts will refuse to enforce contractual rights upon grounds of public policy, but I doubt whether this is directly applicable where the right is conferred and the concomitant duty is imposed by statute."

12. In this field of statutory claims we were also referred to R v Chief National Insurance Commissioner Ex Parte Connor [1981] QB 758, Re Royse (Deceased) [1985] 1 Ch 22 and Re H (Deceased) [1990] 1 FLR 441. In the case of Connor there is an authoritative passage in the judgment of Lord Lane LCJ at pages 765-6. He first rejected the submission that the rules of public policy did not apply to a self-contained modern Act. He said:

"The fact that there is no specific mention in the act of disentitlement so far as the widow is concerned if she were to commit this sort of offence and so become a widow is merely an indication, as I see it, that the draftsman realised perfectly well that he was drawing this act against the background of the law as it stood at the time."

13. He then considered a second proposition drawn from the decision in Gray v Barr [1971] 2 QB 554 that it is not every type of crime which operates so as to cause public policy to make the courts reject a claim. Of that submission he said:

"I would respectfully agree with that dictum and I would agree that in each case it is not the label which the law applies to the crime which has been committed but the nature of the crime itself which in the end will dictate whether public policy demands the court to drive the applicant from the seat of justice. Where that line is to be drawn may be a difficult matter to decide, but what this court has to determine is whether in the present case what this applicant did was sufficient to disentitle her to her remedy."

14. Of course the need of the court to retain a discretion to admit or reject claims based on statute was well illustrated by the crime of manslaughter which ranges over a particularly broad spectrum of culpability. Difficulties in that area were addressed by the Forfeiture Act 1982 granting wide and flexible powers to modify the rule of public policy precluding a person who has unlawfully killed another from acquiring a benefit in consequence of the killing.
15. In the case of Re Royse (Deceased) this court upheld the refusal of the trial judge to admit a claim under the Inheritance (Provision for Family and Dependants) Act 1975 by a wife convicted of the manslaughter of her husband with a finding of diminished responsibility. She was the sole beneficiary under his will but was precluded by her conviction from taking any benefit under the will. It was in those circumstances that she applied under the statute but her claim was struck out as disclosing no reasonable cause of action. Her alternative reliance upon the Forfeiture Act 1982 failed, she having been convicted nearly three years before the Act was passed.
16. In the case of Re H (Deceased) Peter Gibson J held that public policy did not require the application of the forfeiture rule in every case of manslaughter. The court exercised a discretion after careful scrutiny of the facts of each particular case. He so held in reliance on the decision in Gray v Barr. He further concluded that had the rule applied he would have exercised his power under section 2 of the Forfeiture Act 1982 to modify the rule to reflect the justice of the case.
17. That brief survey of recent authority relating to operation of public policy on statutory claims in other fields leads me to the conclusion that the general rule is that the ex turpi causa maxim is not applied absolutely but in the exercise of a proportionate judgment after careful scrutiny of the nature of the crime and the relevant surrounding circumstances.
18. I come now to the recent decisions of direct application. Giving the leading judgment in the case of Whiston v Whiston Ward LJ cited Professor Kenny's description of bigamy as 'an outrage upon public decency by the profanation of a solemn ceremony'. He continued:

"Where the criminal act undermines our fundamental notions of monogamous marriage I would be slow to allow a bigamist then to assert a claim, an entitlement at which she only arrives by reason of her offending. It is obviously proper that the Act of 1973 should afford the innocent party to a bigamous marriage relief. Where an applicant entered into another 'marriage' genuinely and reasonably believing he or she was free to do so, and was therefore innocent of the crime of bigamy, that person too may have an entitlement, though that is not the matter for us to consider today.

Today we have this respondent seeking to profit from the crime. Her claim derives from the crime. Without her having entered into this bigamous ceremony she would not have got to the judgment seat at all. She should now, in my judgment, be prevented from going any further."

19. Henry LJ said:

"This case falls squarely within the principle that as a matter of policy the court will not lend its aid to one who, to succeed, must found her claim on a criminal offence of sufficient gravity, as this crime of bigamy in my judgment was."

20. Russell LJ spoke in more general terms than the other members of the court. He said:

"Bigamy is a crime which, of course, involves mens rea. There is no such person as an innocent bigamist. Bigamy, as opposed to mere cohabitation, strikes at the very heart of the institution of marriage. In these circumstances, the fact that this respondent has contracted a bigamous marriage would be a necessary foundation for her claim for financial relief under the Matrimonial Causes Act 1973.

For a litigant to have to rely upon his or her criminal behaviour in order to get a claim on its feet is, in my judgment, offensive to the public conscience and contrary to public policy."

21. Plainly the decision in Whiston v Whiston is directly in point and binds this court. The crucial question is, is it a decision of general application, as the judgment of Russell LJ suggests, or is it a decision reflecting the particular criminality of the respondent to the appeal as is arguable on the language of Ward LJ ('I would be slow to allow a bigamist then to assert a claim') or the language of Henry LJ ('a criminal offence of sufficient gravity, as this crime of bigamy in my judgment was').
22. Light is thrown on this question by the judgments in the case of S-T v J, not directly in point since the marriage was annulled on the ground that the male applicant for ancillary relief was a female to male transsexual who had committed an offence under section 3 of the Perjury Act 1911 by declaring at the marriage ceremony that he was a bachelor. Of course the applicant in the present case made the identical false declaration and both declarations were designed to establish the capacity to marry. But one was false because the declaration was made by a woman, the other because the declaration was made by a married man. The majority of the court refused to dismiss the applicant's ancillary relief claim on the public policy ground. Whiston v Whiston was distinguished. Only Ward LJ held that the public policy principle applied to debar the applicant's claim. However since the majority were of the opinion that the applicant's misconduct was so grave as to preclude an award in the exercise of discretion all concurred in dismissing the appeal.
23. In a learned judgment Ward LJ sought to extend the rule in Whiston v Whiston to exclude payments for ancillary relief in single sex marriage cases. It is very clear to me from his judgment that he regarded the rule in Whiston as excluding any applicant who had committed the crime of bigamy.
24. Potter LJ defined the principle in Whiston as 'in the case of a bigamous marriage knowingly contracted by one of the parties, that party was precluded from making application for ancillary relief'. He went on to distinguish Whiston on the grounds that the crime was itself the marriage whereas perjury was 'a collateral matter which, albeit it enabled the 'marriage' to proceed, was not itself the crime complained of'.
25. Sir Brian Neill drew the same distinction limiting 'the rule in Whiston's case to cases of bigamy where the marriage itself constituted a criminal act'. His clear reasoning of that limitation deserves full citation:

"I would seek to explain my approach as follows. (1) In all the relevant sections of the Act of 1973 dealing with ancillary relief all decrees of nullity appear to be treated in the same way. (2) Section 25 of the Act of 1973 requires the court when exercising its powers under section 23 or 24 to take account of all the circumstances of the case. This requirement suggests that the scope for the trial of a preliminary issue is very limited. (3) The principle of public policy which can be invoked to bar a claim depends on the establishment of a 'serious' crime by the claimant. In many cases, as it seems to me, a decision as to whether or not a particular crime has crossed the threshold of seriousness may involve an investigation of all the circumstances, including the effect on the other party and any mitigating factors which may reduce the degree of blame. In a case concerning a transsexual in particular such an investigation may require detailed consideration of the medical treatment and advice which the applicant received over a period. (4) I have not been persuaded that in a case which involves the exercise of the court's discretion it is necessary or desirable to carry out a preliminary inquiry to determine one aspect of an applicant's conduct before the general merits of the claim are investigated. As I have already indicated, crimes may vary to an almost infinite degree in their seriousness. This is particularly true of offences under the Perjury Act 1911. (5) Though it is clear from the decision of the House of Lords in Tinsley v Milligan [1994] 1 AC 340 that where considerations of public policy intervene to prevent the enforcement of rights claimed under an illegal contract the court is precluded from carrying out a balancing operation, the situation appears to me to be different where parliament itself has conferred a discretion on the court and has included a requirement that the court in exercising that discretion should consider all the circumstances of the case.

For these reasons I would not decide the preliminary issue on the basis that the applicant is barred in limine from pursuing the claim because by signing the false declarations he had committed a serious crime. Nor would I bar him by the invocation of the wider doctrine of ex turpi causa without investigating all the circumstances of the case."

26. I confess that I have found the comprehension and application of these two cases extremely difficult, a difficulty no doubt enhanced by the fact that I was the judge at first instance who rejected Mr Scott's submission that Mrs Whiston had no entitlement to claim ancillary relief as a bigamist. As a general proposition I am not in favour of strike-out applications in the field of ancillary relief. The court has abundant discretion conferred by the statute itself and particularly section 25(2)(g), requiring the court in particular to have regard to the conduct of each of the parties if that conduct is such that it would in the opinion of the court be inequitable to disregard it. In the case of a statutory claim that is obviously dishonourable, modern practice enables the judge to curtail the claim at an early stage in the exercise of discretion under section 25 rather than on the application of any rule of public policy.
27. In the case of Whiston v Whiston this court did not entertain an appeal from the grant or refusal of a strike-out as a preliminary issue. It was a second tier appeal on quantum. It may be said that the court's preference to reduce the applicant's lump sum to zero, not in the exercise of discretion and particularly the application of section 25(2)(g), but on the grounds of public policy, is in itself significant. But whilst the decision enables a strike-out application to be launched against a comparably culpable bigamist, and is indeed binding on us in such a case, I do not conclude that, as Mr Bellamy effectively decided, it establishes a rule that no bigamist is entitled to apply for ancillary relief. I will endeavour to summarise my reasons for that conclusion:

i) Under the common law even a marriage between two males was undone by a decree of nullity, thus opening the door to a claim for ancillary relief, rather than by a declaratory judgment which precluded such a claim: see Corbett v Corbett [1971] P 83 at 109. In his reasoning Ormrod J made plain that the case for a declaration was more strongly made where the marriage had been celebrated between persons of the same sex than where the marriage failed for bigamy, precisely because the latter marriage 'might in other circumstances have been a valid marriage'.

ii) The language of the judgments in Whiston does not unequivocally establish the existence of a universal rule precluding the bigamist from exercising the statutory right of application.

iii) The crime of bigamy can surely not be said to be so serious as to suspend the general rule that whether or not the principle of public policy can be invoked to bar a claim depends upon an appraisal of the seriousness of the crime in all the circumstances. As Dr Cretney pointed out in his commentary on the decision in Whiston v Whiston, see 112 LQR 33, Professor Kenny followed his colourful description of the crime by saying that it, like manslaughter, is peculiarly elastic in its range.

iv) The authorities from Gray v Barr to S-T v J demonstrate that where an application to invoke statutory entitlement arises out of a criminal act the court must have regard to all the circumstances before deciding whether or not the applicant is debarred.

v) The majority in S-T v J were unable to distinguish Whiston on the basis that the applicant's conduct was less culpable. Thus emerged the distinction between the crime that was the marriage and the crime collateral to the marriage. But that does not preclude distinguishing Whiston in the case of another bigamous applicant whose culpability measures so much lower on the elastic scale.

28. I would be loathe to reach any other conclusion since absolute rules in the field of family law are inevitably, and usually swiftly, challenged by the exceptional case. Even the present case, not so exceptional on its facts, challenges the application of the rule in Whiston to all culpable bigamists. Here the wife engineered the ceremony and embraced the desired respectability for some 22 years. She herself petitioned for divorce and obtained her decree absolute. She too prayed for all forms of ancillary relief. Only when confronted with her husband's money claim did she play the bigamy card, falsely asserting that she, like Mr Whiston, was the innocent victim of deception. She went to trial on that issue plainly conceding that her attack on the husband's entitlement to claim ancillary relief depended upon the court accepting her version of the facts.
29. Clearly the decision in Whiston v Whiston has created difficulties in application. The case of S-T v J and the present case are sufficient illustrations of that proposition. Accordingly it is important, in my opinion, that the width of the court's proportionate judgment is proclaimed in all cases where the applicant's entitlement to statutory relief is challenged by a criminal step in the entry into marriage. Unless there is such latitude unfair or bizarre outcomes are risked. The applicants in Whiston v Whiston and S-T v J were broadly speaking equally culpable. Yet in the result one was held to be disentitled and the other not. Yet both had made the same perjurious declaration: 'I am a bachelor'. Furthermore the one disentitled made the less meretricious marriage (to use the language of the ecclesiastical court) because it was a marriage capable in other circumstances of being a marriage. Furthermore if distinctions are to be drawn on the crude basis of the grounds for the decree of nullity rather than on the more sophisticated basis of a review of all relevant circumstances, how are we to deal with marriages within the prohibited degrees (some but not all of which are incestuous crimes on consummation) and marriages under age (again some but not all of which involve criminality on consummation)?
30. In conclusion I do not regard the rule in Whiston v Whiston as extending to exclude every culpable bigamist whatever the circumstances of the case. The court cannot be deprived of the freedom established through a line of cases in other fields to evaluate the nature of the crime itself, to revert to the words of Lord Lane LCJ.
31. I would not in any way criticise the judgment of Mr Bellamy who took on a difficult responsibility without the aid of full argument. However I am satisfied that he elevated the rule in Whiston too high. I am satisfied that the rule does not preclude this court from having regard to the nature of the crime and all the surrounding circumstances. That appraisal leads me to the clear conclusion that the concession made by the wife's counsel in the court below was rightly made. Once the husband had established the truth of his story the gravity of his offence was not such as to deny him his statutory rights on public policy grounds. On that basis I would allow the appeal.
32. For completeness I should add that had I reached a different conclusion on this central point I would not have acceded to Mr Scott's supplemental argument in reliance on Article 6. Any system of law is entitled to incorporate strike-out mechanisms for the summary dismissal of claims that are abusive or contrary to public policy, providing that such summary judgment is preceded by an entitlement to a hearing compliant with the requirements of Article 6. Plainly the conclusion reached in the Family Division was preceded by two full and fair hearings.

ROBERT WALKER LJ:

33. I agree.

THE PRESIDENT:

34. I also agree.
ORDER: Appeal allowed; application by petitioner husband for ancillary relief reinstated – application to be heard a High Court Judge of the Family Division; costs of both parties to be subject to detailed assessment; respondent wife to pay the costs of the petitioner husband (to include the costs reserved before Hogg J on 18.0 4.00 and Bennett J on 27.06.00), such order not to be enforced without leave of the High Court Judge or District Judge, whoever may be dealing with costs; permission to appeal to the House of Lords refused. (Order does not form part of approved Judgment)