England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		1 March 2013

Mr Justice Peter Jackson:

Introduction

1. This is an application for a declaration of marital status under section 55(1)(a) of the Family Law Act 1986. MO, the applicant (as I shall call her), claims that she was married to RO, the respondent (as I shall call him), in a customary marriage ceremony in Lagos, Nigeria, on 20 June 1977, and that this was a valid marriage from its inception. The respondent denies that any such ceremony took place or that he and the applicant have ever been married. He also, at a late stage, asserts that if there was a marriage, it was void by virtue of s.11(d) of the Matrimonial Causes Act 1973, as being a polygamous marriage entered into at a time when he was domiciled in this jurisdiction.
2. Attendant upon these issues, and depending on their outcome, are questions concerning the occupancy of a property in London, claimed by the applicant to be owned by the respondent but by the respondent to be owned by a company of which he is a director, and other claims by the applicant for financial provision upon a divorce.
3. The court is not short of material to consider. It has been provided by the parties with 1300 pages of documentation, including no less than eight statements by the applicant and statements by fourteen witnesses on her behalf, and five statements by the respondent and statements by seventeen witnesses on his behalf, as well as three statements on behalf of the company. There are reports from a forensic document expert and from an expert in Nigerian law.
4. At the outset of the hearing, the respondent applied unsuccessfully for an adjournment. Thereafter, over the course of four days, the court heard oral evidence from the following witnesses: the applicant, the respondent, their two adult children, the respondent's four adult children, one witness for the applicant and four witnesses for the respondent.
5. My findings of fact are made on the balance of probabilities, the burden of proving a fact being on the party that alleges it. Where I describe an event as having happened, that represents my finding, unless the context makes clear that I am describing a disputed contention.
6. The disagreements between the parties across a span of 35 years are numerous and it is impractical and unnecessary to resolve them all. It is particularly sad that the six children, who grew up together, are now at odds with each other as a result of the dispute between the parents.
7. In this case, for reasons that will become clear, the guidance in R v Lucas is in point. Lies may be told for many reasons and the fact that a person lies about one thing does not mean that they may not be telling the truth about another.

Chronology

The respondent and Mary

8. The respondent was born in Nigeria in 1943 and is now 70 years old. He came to London in 1964 and obtained indefinite leave to remain. He lived here for some 25 years, finally returning to Nigeria in 1989.
9. In 1967, the respondent married a woman named Mary in a customary marriage in Nigeria. She came to live in England and between 1968 and 1973 they had four children, P, C1, C2 and V.
10. In 1974, Mary returned to Nigeria with the children. She came back to London with them in 1975 and, having formed another relationship, separated from the respondent and returned finally to Nigeria in June 1976, taking the children. In August 1977, Mary married her present husband in a civil ceremony in Nigeria, describing herself on the marriage certificate as a spinster. In February 1980, Mary's dowry was formally returned to the respondent's family.
11. In August 1975, the respondent renewed his Nigerian passport. In those days, a husband and wife could have a joint passport. The passport was reissued in the name of the respondent and Mary, although they had by then separated and she never benefited from it. The original, which is severely damaged, has been produced by the respondent in these proceedings. Over the ten years between 1975 and the passport's expiry in 1985, it bears evidence of the respondent travelling backwards and forwards to Nigeria very frequently, particularly after 1980, but there are no visible stamps in the period between 6 June 1976 and 13 July 1978.

The applicant and the respondent

12. The applicant, who has lived in England for some 35 years, was born in Ghana in 1952 and is now 60 years old. Her given names are Dora Mary and she was generally known as Dora until she met the respondent.
13. In the middle of 1976, the applicant was on a visit to London. She met the respondent and their relationship began. She was then 24 and he was ten years older.
14. The applicant alleges that she then returned to Ghana as her travel visa was expiring, but that she and the respondent kept in touch by telephone and that by the following year he had come to Nigeria and they had arranged to meet. She says that a marriage according to native law and custom took place on 20 June 1977 and that a short while later it was registered in some civil fashion. She says that her Uncle K was then living in Lagos and that it took place at his house. She says that the respondent then returned to England and she returned to Ghana. He then returned to collect her and bring her to England later that year or early in 1978. They travelled on the joint passport, onto which she says that the respondent had added her name, albeit inaccurately in what she took to be a mistake on his part.
15. The respondent says that no marriage of any kind took place. From the time they met, he and the applicant remained in England (in her case until 1985, when she obtained her own sole passport). He states that he has never met any of the applicant's relatives, except her sisters in London, and that he has never heard of any uncle living in Lagos. MO, Rereover, he claims that the address given for the uncle has never existed. He says that the applicant simply appropriated the identity of his wife Mary from the outset, using her spousal details as they appear in the joint passport.
16. A friend of the respondent, Mr JO, was married in London on 2 July 1977. He and the respondent say that the respondent was at that wedding, and also in London throughout the previous month of preparations.
17. Whatever the date of her permanent arrival in England, the applicant took on the identity of the respondent's former wife Mary in all her dealings with officialdom, using Mary's name and date of birth and holding herself out as being Nigerian.
18. By early 1978, the applicant and respondent were living together in a property in London. They were joined during the course of the year by the respondent's four children, first P and C1, and then C2 and V. Before long these children were calling the applicant 'Mum'.
19. At some point around this time, one of the applicant's sisters was deported from the UK to Ghana.
20. In December 1980, the parties' own first child (M) was born, and in September 1984 their second child (N) was born. The father registered each child at birth, giving the mother's details as those of Mary. There is a photograph of the respondent holding one of these children at the hospital; in evidence he tried, unconvincingly to my mind, to deny that he ever held the children in that way.
21. In December 1981, a property in Dulwich (No. 108) was bought for the family by the second respondent company, which bears the respondent's name. In 1984, once works had been completed, the family of two adults and six children moved into the property.
22. The applicant produces the counterfoil of an air ticket showing her as having travelled to Nigeria in August 1983. She says that she used the joint passport, though there is no legible stamp in that document to confirm this.
23. In 1984, on the death of his father, the respondent travelled to Nigeria, but the applicant did not. The respondent's ex-wife Mary attended the funeral.
24. In 1985, on the expiry of the joint passport, the applicant applied for a Nigerian passport using Mary's details. She renewed the passport in the same way in 1989 and 2001. In 2008 (when Mary turned 60), the applicant, then only 56 or 57, was offered, applied for and received a state pension.
25. From 1985, the respondent, who had been travelling backwards and forwards frequently, began to plan to return to Nigeria for good. In 1987, he started dividing his time between London and Nigeria and in 1989, he returned to live there permanently, taking his four children with him. The applicant and the two younger children remained at No. 108 and in 1990 the respondent's children, then aged between 17 and 22, returned to London against the his wishes to live with the applicant and younger children.
26. In 1989, the applicant visited Ghana for her father's funeral, and the following year she returned for her mother's funeral. By this time, she says that Uncle K had moved back to Ghana from Nigeria.
27. On 16 July 1991, the respondent's company brought possession proceedings in an attempt to remove the applicant from No. 108. In those proceedings, the applicant filed a defence and counterclaim settled by counsel. In it, it was averred that she married the respondent 'in or before 1975' and that the marriage had been registered. The proceedings were withdrawn; according to the respondent this was done in the interests of the children. According to the applicant, she produced an affidavit of marriage from Uncle K, and the respondent begged her not to go ahead.
28. In 1992, the respondent's mother died in Nigeria. The applicant did not attend the funeral, while Mary did.
29. There matters stood for many years. The applicant continued to live in London, while the respondent pursued his business interests in Nigeria.
30. In about September 2009, the applicant travelled to Nigeria unbeknown to the respondent and went to stay with his older brother and his wife, with whom he was not on easy terms following litigation between them about their mother's burial arrangements.
31. A younger cousin of the respondent (Mrs JO) alleges that at this time the applicant approached her and asked to be taken to see the respondent's village so she should have information to give her two children. Mrs JO says that she and the applicant made a two day trip to the village and that on that occasion the applicant told her that she had not been married to the respondent. The applicant denies any meeting, trip or statement of this kind.
32. In mid-November 2009, the parties' adult children M and N came out to Lagos, as did the respondent's daughter P. Again, they came without the respondent's knowledge and went to stay with his brother. The whole group then went to the hotel run by the respondent and insisted on seeing him. He tried to pretend he was not there, hiding behind a door to avoid seeing his children, but eventually a general discussion took place. The applicant returned with the brother and his wife to their home. The children, M, N and P, stayed at the hotel and P returned to London the next day.
33. According to the applicant, the respondent, accompanied by the children M and N, and the respondent's elder brother and his wife, came to the brother's home a few days later. The respondent brought drinks, cola nuts and the sum of £1000 sterling. A ceremony described by these witnesses as a 'reconciliation ceremony' took place, following which the applicant and respondent embraced and the children considered their parents reconciled. The applicant and children then returned to London.
34. The respondent denies that any such ceremony took place. He says that he did not visit his brother's house at all and that he sent his secretary with the sum of £1000 to the applicant as she needed money to get back to England.
35. In December 2010, out of the blue, Mary instructed a Nigerian lawyer (who acts for the respondent) to write to the applicant complaining about her use of Mary's identity and seeking an apology. The applicant produces a copy of a reply in which she asserted that she and the respondent were married in a traditional marriage that had been legally registered.
36. In February 2011, the respondent came to London and proposed the renovation of No. 108, with the applicant being temporarily rehoused. After further discussion, she declined, whereupon a dispute broke out. The respondent alleged that the applicant had no right to be in the property and in the summer of 2011, the respondent's company, acting through his son V, caused renovation works to be started and locks to be changed. The applicant has ended up having to live elsewhere, and has been unable to return to the property since then.
37. In October 2011, the applicant issued a divorce petition in the Principal Registry, together with applications for financial provision, a freezing order and an occupation order. In response, the respondent issued Nigerian proceedings in January 2012 for jactitation of marriage - i.e. for an order restraining the applicant from holding herself out as being married to him.
38. After several hearings at the Principal Registry, the matter came before the High Court in February 2012. The question of forum was resolved at a hearing (coincidentally before me) in March 2012, when the parties agreed that the issues between them should be resolved by the English court.
39. In 2011, the applicant wanted to regularise her position and obtain British citizenship. She began the process by obtaining a Ghanaian passport, using her correct personal details. In January 2012, she attempted to obtain indefinite leave to remain in this country on her Ghanaian passport, but withdrew the application in the face of an indication from the Home Office that it would not be granted.

The Nigerian proceedings

40. Although the respondent agreed in March 2012 that this court should have exclusive jurisdiction in matters concerning himself and the applicant, he nevertheless continued his Nigerian proceedings in the High Court of Lagos State. A hearing took place in April 2012, attended only by the respondent and his counsel, and on 18 May 2012 The Hon. Mrs Justice L.A.F. Oluyemi made a declaration that there was never any marriage between the parties under Nigerian law and granted a perpetual injunction restraining the applicant from asserting or boasting that she was ever married to the respondent under Nigerian law.
41. The learned judge stated that it was the court's duty to believe the respondent's uncontradicted and unchallenged evidence unless it was probably false to the knowledge of the court. She considered the applicant's case in the English proceedings that the parties were married on 20 June 1977. She found that no civil marriage had taken place and that the applicant's account was "riddled with inconsistencies... to say the least". She referred to the 1992 defence and counterclaim, which gave a date for the marriage as '1975 or before', thus predating the parties' first meeting. The learned judge put it this way: "I am of the view that the one day or event in a woman's life that should be so cherished and remain indelible in her memory is the day of her marriage. This appears not to be so in this case where the respondent has averred inconsistent dates and places of her marriage."
42. The judge does not appear to have been informed of the parties' agreement in March 2012 to litigate in this court, or of the fact that the applicant's Uncle K had died many years ago, for she described the fact that the applicant and her uncle had failed and refused to give evidence in those proceedings as regrettable and deliberate, and as giving her no option but to be guided by the respondent's evidence.
43. I take note of the determination of the Nigerian court about this alleged Nigerian marriage. However, for good reason it heard from one party only, and the respondent does not suggest that this court, having had access to a much greater range of evidence, and having seen both parties be cross-examined, is bound by that court's conclusion. Accordingly, and in the light of parties' prior agreement that this court would be the forum in which their disputes would be resolved, it would, with all respect to the Nigerian court, not be right for me to be influenced by its factual conclusions.

Expert evidence on Nigerian law

44. An expert in Nigerian law, Mr Oba Nsugbe QC SAN, was jointly instructed to report on the legal requirements in Nigeria to be satisfied by a wedding ceremony. He advises that Nigeria has two parallel legal regimes: native law and custom, and civil law. Civil ceremonies are generally Christian in nature, held in a church and registered, while native law and custom is more fluid and depends on the particular tribe(s) involved, their own customary dealings and the passing of time. The core attributes common to weddings of the respondent's tribe are consent of the bride and her family, a ceremony at the family house of the woman, and finally, the physical 'handing over' of the woman to her new husband at some stage after the ceremony.
45. An issue arises as to whether or not the consent of the groom's family is required. Mr Nsugbe cannot categorically state that the absence of the groom's family's consent would invalidate the marriage, but it might cause serious controversy or real doubt.
46. He advises (in contrast to other evidence from Nigeria) that a native law and custom wedding may be registered but it does not have to be in order to be legally binding. Accordingly, the absence of a marriage certificate does not determine whether or not a valid native law and custom marriage exists.
47. He further advises that under Nigerian native law and custom, a man can be married lawfully to more then one woman at a time.
48. I further take note of the judgment of The Hon. Mrs Justice Oluyemi, whereby she identifies three specific issues when determining whether there has been a marriage: the type of marriage (i.e. customary or civil), the date of marriage, and the place where it was contracted. She cites authority for the proposition that in the absence of evidence from witnesses, failure to state a venue of a customary marriage means that the court may not be able to find in favour of its existence, though in fact she goes further by saying that disclosure of the venue is compulsory and the lack of such evidence fatal.

The applicant's case regarding the marriage itself

The applicant's own accounts

49. As stated above, the first assertion of marriage was made by the applicant in the 1991 possession proceedings, where her Defence and Counterclaim dated 12 February 1992, produced in these proceedings by the respondent, reads:

"The Defendant avers that in or before 1975 she and [RO] were lawfully married in Nigeria, such marriage being registered in Nigeria and that the said marriage is still subsisting."

The applicant says that this was a misunderstanding by her lawyers based on the date of the 1975 joint passport, and that it was later clarified, but I have seen no evidence that this was done.

50. Next, in her response to the letter from Mary's lawyer, said to have been sent in January 2011, the applicant wrote:

"Your allegation that [R] and I were never married is totally false. We contracted a traditional marriage in Lagos. The marriage was later legally registered under the Nigerian law."

Although Mary said she did not receive this letter, I proceed on the basis that it was probably sent.

51. Next, in her affidavit in these proceedings dated October 2011, the applicant gave this account:

"I fell in love with him but returned to my home in Ghana, remaining in telephone contact... Later that year we arranged to meet in Lagos, Nigeria. When we met, the Respondent proposed to marry and I accepted. We married in Lagos, Nigeria on 20 June 1977. Unfortunately, I no longer have a copy of the marriage certificate to exhibit but I do confirm the marriage was registered as required by the laws in Nigeria at that time. I no longer have a copy of the marriage certificate as my estranged husband returned to the matrimonial home one day in or around 1989 or 1990 and in my absence removed many of my personal documents. When I challenged him he said he took the documents and 'we will see how you will get your documents back. You know I can do anything in Nigeria'. However, I am able to exhibit a sworn affidavit, filed with the Lagos state Magistrates' court in Nigeria, from my uncle who attended and witnessed the marriage, together with 2 letters sent in 1986 and 1990 by the Respondent which confirm I am his wife ..."

52. In her statement of 2 April 2012 at [B348-354, paragraphs 6-22], the applicant gives a detailed account of the events between her meeting the respondent in 1976 and their return together to England as a married couple in 1977/8, and includes an account of the wedding day itself:

14. The wedding took place on 20 June 1977. I recall the day quite well although it took place so long ago. June can often be a rainy month in Nigeria but on the day of our wedding, the weather was ok; it did not rain. My uncle invited friends from Ghana but I did not know any of those who attended the wedding. The Respondent also invited friends and neighbours from my uncle's village also came along to the ceremony. I only knew my uncle [K], his wife and my other uncle [S] who had come to the ceremony.

15. My uncle's house was made of cement in the same way as the majority of houses in Nigeria at that time. It was a creamy colour on the outside and inside consisted of a long living room with 2 bedrooms off to the right hand side. A canopy had been set up outside for the day's celebrations. When everyone arrived at my uncle's house, I was sat in my uncle's bedroom with the door shut as I understand is tradition. The Respondent arrived along with the others and he was dressed in his traditional Nigerian wedding clothing. We both wore the same cream coloured clothing made from the same cloth. I wore a traditional skirt, top and hair tie.

16. The ceremony took place in my uncle's living room. Everyone gathered there and there were 2 seats at the end of the room. Those representing my side of the family sat on one side of the room and the Respondent's friends were on the other side. The Respondent had brought around 10 friends with him but it's hard to remember precisely as I did not know the majority of people there. My uncle [K] ran the ceremony. The respondent stood by the seats at the end of the room with my uncle and a girl was brought before him wearing a cloth over her head to conceal her face. The Respondent was asked 'is this your woman?' and he replied 'no it is not'. A second girl was brought out, again her face was covered and the same question was asked of the Respondent who gave the same reply. I was then brought out with a cloth over my face. When the Respondent was asked whether this was his woman, on this occasion he replied 'Yes, this is my woman.' The cloth was then taken off my head and everyone clapped. The Respondent and I joined hands and we sat down together.

17. The Respondent's friends brought forward the gifts from the Respondent which were the 'bride price' for my family. I recall the Respondent gave money to my parents which was a sum equivalent to the custom in Ghana. I have already stated that the Respondent gave me money to buy the wedding cloth and a sewing machine. The Respondent also bought food and drink to the ceremony. I recall the drink was Schnapps. MO, Reney was also given by the Respondent to my uncle [K].

18. After the gifts were presented, the Respondent and I exchanged rings and a prayer was said over each ring before we in turn placed a ring on each other's finger. Sadly, I no longer have photographs of our wedding as the Respondent removed them from our home when he left in 1989. However I do have photographs of the Respondent and I wearing our wedding rings in other photographs and I attach some of the Respondent as exhibit 'MO2'.

19. Another prayer was then said by everybody over the wedding confirming my family knows who I am with. Some photographs were taken by one of the Respondent's friends on a Polaroid camera. Everyone stayed for a time to eat food, drink and celebrate our wedding. That night, the Respondent and I returned to our usual hotel as husband and wife.

20. After the wedding, I still believed we would have a church wedding in Ghana so all my family could attend. I recall the Respondent took me to sign papers confirming our marriage and told me that we needed to sign these forms so that we could go on and apply for a joint passport. I recall attending an office building with the Respondent and one of his friends. We met with an official there who was shown the photographs of our wedding and the Respondent and I confirmed we were married. All 4 of us then signed some documents which I believe was the registration of our marriage. My uncle [K] also swore an Affidavit with the High Court in Lagos in 1977 confirming the wedding, as did my uncle [S]… I attach as exhibit 'MO3' those affidavits.

53. In giving evidence in these proceedings, the applicant said that what she most remembered about that day was her dowry, her waiting in another room when the respondent arrived, and her feeling sad that her mother and sisters were not there with her.
54. As to the signing of documents, she referred to her Uncle K as also having been present along with herself, the respondent and his friend. She says that this happened in a building which she had difficulty describing beyond saying that it was like a church, but that it was not a church. She says that they signed what she described as 'documents for a married couple' and it was this that the respondent later took from her.
55. The respondent points to the inconsistencies of date in the applicant's account. In November 2011, he produced evidence that no civil marriage had been registered at or around the relevant date.
56. In response, the applicant specified that the marriage took place in accordance with native law and custom. To this, the respondent has produced evidence from the Nigerian authorities that (contrary to the advice of Mr Nsugbe QC) a customary marriage cannot be registered.
57. From this, I conclude that the applicant's claim to have been married to the respondent is of long standing but that the details that she has given over time have been confusing, contradictory and in some ways inconsistent with other evidence.

The applicant's supporting evidence

(1) The affidavits of Uncle K

58. As stated above, the applicant has produced copies of two affidavits that purport to emanate from her late Uncle K, who she says died aged about 90 in about 1994. These are single page documents dated 1977 and 1991 respectively and entitled 'Declaration of Marriage Under Native Law and Custom'. The body of each document reads as follows:
IN THE HIGH COURT OF LAGOS STATE

IN THE IJEKA JUDICIAL DISTRICT

HOLDEN AT IKEJA

DECLARATION OF MARRIAGE

UNDER NATIVE LAW AND CUSTOM

I, [JKA], 74, in Ghanaian resident in Nigeria, male, Christian, of No. 3, Koko Close, Maroko, Lagos State of Nigeria, do solemnly make oath and say as follows: -

1. That I am a paternal uncle of Mrs Mary [O](Nee [A]) and represent my brother, Mary's father and the [A] family of Ghana in Nigeria.

2. Without I with the consent of the [A] family had free will of Mary accepted the marriage proposal of [RO] on or about February, 1977 with the traditional knocking fee.

3. That [R], now known and called [RO] in company of his family and friends on 20th June, 1977 brought traditional gifts of Sewing-Machine, Trunk box containing clothes, shoes and bags; Whisky, Gin, Soft drinks, Local gin and cash plus the traditional dowry of one guinea.

4. That I received the dowry and traditional gifts and blessed both Mary and [R].

5. That I then handed over Mary physically to [R] in traditional marriage in the presence of both family and friends who prayed and rejoiced with them.

6. That this sworn affidavit of marriage under our custom is required for record purposes.

I make this declaration in good faith and in accordance with the Oaths Law of Lagos State, 1973.

_________[Signed]_____

[JKA]

DECLARANT

Sworn to at the High Court Registry, Ikeja

this _________________ day of _____________________ [YEAR]

BEFORE ME:

____________________

COMMISSIONER FOR OATHS


59. The first version of this document was a copy produced by the applicant as an exhibit to her statement dated 6 October 2011, bearing the date 20 June 1991 and purportedly signed by Uncle K. It bears the stamp and signature of a commissioner for oaths. Although the document is entitled in the High Court, it bears a Magistrates Court seal.
60. The other version of the document, produced by the applicant as an exhibit to her statement dated 2 April 2012, bears the date 29 June 1977 and is purportedly signed by Uncle K in a different way. It bears the stamp and signature of a different commissioner for oaths and a High Court seal.
61. The forensic document expert has not been able to express an opinion on the authenticity of these photocopy documents, for lack of sufficient information. To the untrained eye the typed body of the two documents appears to be almost identical up to the point where the deponent's signature should appear, so that one might be a photocopy of the other. The only visible difference is in the length of the underlining of the last line of the title, but that may be a copying artefact.
62. However, from that point onwards small but distinct changes in the formatting show that a different final section has been created for the 1991 document, and a different year inserted in the typescript, showing that the foot of the 1991 version is not a photocopy of the 1977 version, but a close copy, possibly cut and pasted. I conclude that whoever created the 1991 document was probably working from a copy of the 1977 version.
63. The respondent points out these further points of interest about these documents:

• Both give uncle K's age as 74, which was probably his age in 1977, according to the applicant.

• There is clear evidence that the Nigerian authorities cleared the Maroko district of all dwellings in 1990, so that it did not exist at all in June 1991.

• There is no record of 3 Koko Close ever having existed; further, Koko Close is the name of a popular Nigerian television sitcom based on a street, rather in the manner of Coronation Street or Brookside.

• The 1991 version bears a Magistrates Court seal.

• It is not clear why any affidavit existed in the first place.

64. To this, I would add that it is surprising that the applicant, whose given name is Dora, should have been referred to as Mary by her own uncle as far back as 1977. I also note the applicant's evidence that her uncle was illiterate.
65. The applicant says that the 1977 document was given to her by her uncle after the marriage and that the original was in a suitcase in a wardrobe at No. 108 that the respondent had removed in 1989 during her absence at her father's funeral in Ghana. The copy exhibited had been given to her mother for safekeeping during a visit to London.
66. She says that the 1991 affidavit arose after she visited Ghana for her mother's funeral. She needed proof of marriage in the light of the English proceedings and she asked her Uncle K, who was by then living in Ghana, for an affidavit. She says that he said that he had some things to sort out in Lagos (which is a journey of some seven hours from his village in Ghana), and that he later sent the document by post to Dulwich. It was kept in a safe at No. 108 that she alleges was broken into by the respondent's sons in 2011. The copy exhibited had been kept by her sister in London.
67. I conclude that there are some curious features about the 1977 document and even greater doubts about the authenticity of the 1991 document. In particular, I cannot be satisfied that there has ever been an address known as 3, Koko Close, or that the applicant's Uncle K (assuming that he lived at some stage in Lagos) returned there in 1991, when he would have been very elderly. MO, Rereover, the applicant has not explained why she had asked for a second document in 1991, when a copy had been kept of the original 1977 affidavit, or why she produced the 1991 version before the 1977 version in these proceedings. I am also unable to be satisfied that original documents were taken by or on behalf of the respondent at different times in the manner suggested by the applicant.

(2) The affidavit of Uncle S

68. The applicant also produces a copy of a statutory declaration by her Uncle S, who she says was at the ceremony. This bears the date 27 February 1992, so it is apparently contemporaneous with the 1991/2 possession proceedings. The document describes the marriage as having taken place to the best of the deponent's knowledge, information and belief, but does not imply that he was himself present; on the contrary, the account is of his brother K having received the dowry and customary gifts on behalf of the family in Ghana, including the bride's father (now deceased) and himself. For that reason, the document adds little or nothing to the applicant's case that there was a marriage at which her Uncle S was present. Nor is it clear why this uncle would have come from Ghana for a wedding, unaccompanied by any other members of the applicant's family.

(3) Other evidence/lack of evidence

69. The applicant produces a picture of herself and the respondent in which she says he is wearing a wedding ring. He denies that it is a wedding ring, and I am unable to resolve this.
70. The applicant does not produce any photographs of the wedding day and says that the respondent removed them when he left for Nigeria in 1989. It is in my view unlikely that if there were wedding photographs, the respondent would have succeeded in removing all trace of them.
71. I find that there was never a formal marriage certificate.
72. Regard must also be had to the absence of any other contemporaneous evidence of a marriage having taken place, and to the applicant's inability to name any of the friends said to have accompanied the respondent (bar, possibly, one), or the neighbours of her uncle.

The respondent's account regarding the marriage

73. In his statements and evidence, the respondent vehemently denies being in Nigeria in 1977. He says that he knows two of the applicant's sisters from meeting them in London, but that he had never met any uncle, nor any member of her family in Africa and that, despite having two daughters who are half Ghanaian, he has never visited that country.
74. In his affidavit of 30 November 2011, the respondent states:

6. The Applicant has not given a true account of the events relating to when we first met. I first met the Applicant in about June 1976. At the time I lived at [an address in Catford] with my wife [Mary] and our four children. The property ... consisted of three flats. I occupied one of flats with my wife and family. My marriage fell apart and my wife moved to Nigeria, from where we both originate.

7. In June 1976 the Applicant, who I knew as Dora [surname] and her sister J, were introduced to me by my late friend [name]. The [sisters] lived at [address], Bermondsey... The Applicant and her sister are Ghanaian and in June 1976, they had overstayed on their visas. I believe [they] were sought by the immigration authorities as illegal immigrants. They were in a desperate situation and wished to rent the top floor of the property.

8. I am not certain of the precise details but I think that [J] was arrested at [Bermondsey address] and deported. The Applicant was not at the property when her sister was arrested and managed to avoid the immigration authorities. She then rented the top flat at [Catford address]. At the time, I knew the Applicant in the capacity of her landlord and did not therefore take an interest in her personal affairs.

9. As time passed, I developed a friendship the Applicant. I recall that the Applicant requested that I marry her as a marriage of convenience to enable her to stay in the country legally. I refused, however as time went on, we began a relationship and lived together.

10. The Applicant states that we married in Lagos in Nigeria on 20 June 1977. I vehemently refute that I was and had ever been married to the Applicant in Nigeria or any other country.

75. He then produces a copy of the joint passport.

Other aspects of the evidence

76. I turn to these aspects of the evidence, addressing the most recent first:

• The 'reconciliation ceremony'

• The 'village trip'

• The parties' reputation in Nigeria

• The parties' reputation in England

• The applicant's use of Mary's name and details

• The respondent's marriage to Mary

• The parties' whereabouts in June 1977

• General points made by the parties

The 'reconciliation ceremony'

77. There is a clear account given by the applicant, the parties' adult children and the respondent's sister-in-law. The occasion was meaningful for the two daughters, M and N: N had never known her parents being friendly towards each other, and both girls felt that the occasion was important for their mother, who had been deprived of their father's support for so long. I also note the evidence of the respondent's daughter C2 that there was a discussion about him buying the applicant another home in London.
78. Having listened to the evidence, I find that the event took place as described by the applicant and her witnesses and that the respondent's denial that he went to his brother's home on that occasion is untruthful. However, the event does not necessarily establish that the couple had been married and I reject attempts by some witnesses to label it a 'reconciliation of marriage ceremony'. It could equally have been a sign of them reunifying as a couple, or at least patching up their differences, or that the respondent privately had no such intention and underwent the ceremony as a means of persuading the applicant to go back to England. It is of some significance that a formal photograph was taken of the family, minus the respondent, on an earlier day: no such photograph was taken at the time of the reconciliation ceremony.
79. I do not overlook the fact that this event did not receive a mention in the applicant's own statement of 7 October 2011:

10. In November 2009, after having no real contact with the Respondent since he left the family home in 1989, I travelled to Nigeria with the hope of resolving the outstanding issues around our marriage. He was not willing to discuss things with me and so I eventually returned home to London after 3 months. He did not allow me to stay in his hotel or his home. I stayed with his relatives and only saw him for short periods about five times.

11. However, he then contacted me earlier this year and said he wanted to make amends for years he had been absent. He told me that he wanted to update and renovate the matrimonial home...

I am nonetheless satisfied, having heard from the adult children and the brother's wife, that the event took place, but the passage just quoted shows that the applicant did not previously attribute much significance to it.

80. On this issue, the respondent again shows himself capable of giving deliberately untrue evidence.

The 'village trip'

81. Unfortunately the same can be said of the applicant. I accept the evidence of Mrs JO that she travelled with the applicant to the respondent's village in 2009 and find the respondent's denial that any such trip took place to be untruthful. On balance, I accept the evidence of Mrs JO that the applicant told her that she and the respondent had not been married, though I think it unlikely that this formed as prominent a feature of their conversation as that witness now suggests.

The parties' reputation in Nigeria

82. The respondent's family in Nigeria, which is a significant family with a formal structure, has never known the applicant as his wife. I accept the evidence of the family's representative, Mr O, that it knew of the respondent's marriage to Mary, but knew the applicant only as 'somebody in England that had two kids for him'.
83. Mr O, however, said of the alleged marriage that it could not have happened because it is not known to the family. In my view it would not be safe to assume that the respondent's family is all-knowing in this way. For example, Mr O was unaware of the applicant's marriage claim in 1992. I conclude that, had the respondent wanted to remarry without the knowledge of his family, he could have done so, though it would have been unusual.
84. At the same time, I am unable to accept the no doubt honestly-intended evidence of the respondent's sister-in-law that the respondent introduced the applicant to her in Nigeria in the early 1980s as his wife: I say this because this witness was equally emphatic that the respondent and Mary had never married. I do however note her comment that the respondent never told the family about his love affairs.
85. It is clear that the applicant is not known as the respondent's wife by his substantial extended family in Nigeria. Nor is there any evidence that he is known to the applicant's family in Ghana as her husband.

The parties' reputation in England

86. I am satisfied from the evidence as a whole that the parties lived together as man and wife between 1977 and 1989, even though they latterly had difficulties in their relationship, particularly after the move to No. 108 in 1985. Together they produced two children and they (mainly the applicant) cared for six.
87. I also accept the applicant's evidence that she referred to the respondent as her husband, and he referred to her as his wife, as evidenced by the letter of authority written by him in 1986 [B24]. The respondent's evidence about this possibly not being his writing was entirely unconvincing.
88. The applicant produces another letter, bearing the date 19 November 1992 [B25], and purporting to be an original letter of authority, signed by the respondent, and giving authority to her as his 'wife' to collect money in relation to a property they managed. The respondent's signature has, according to the forensic expert, plainly been traced from a template. The applicant says that she did not falsify the signature. The respondent had given her the letter by hand at the time of the 1991/2 proceedings, after begging her not to go to court. I reject the applicant's evidence. I find that, whoever typed the letter, the applicant or someone on her behalf traced the respondent's signature, but that this was probably a contemporaneous forgery enabling her to collect family money, rather than a forgery created for these proceedings. Nonetheless, the applicant has produced it as a genuine document when she knows it is not.
89. The respondent's children were emphatic that they always knew that the applicant was their father's partner and not his wife. There were never any wedding photographs among the family collection. Even so, they accepted that there were some occasions on which the applicant referred to their father as her husband. One of them explained that 'in our culture when you're not married and have children, it doesn't look good'.
90. On the other hand, the parties' own children have given evidence on behalf of their mother. The older daughter, M, says she definitely recalls her father speaking of being married to her mother and of them referring proudly to themselves as husband and wife in the presence of visitors.
91. Sadly, the children have all become distinctly polarised by these proceedings. I limit my findings to saying that I do not think that they are well placed to know whether a marriage actually took place or not at a time when the eldest of them would have been aged 8 and two were not even born. In particular, I cannot attach any weight to the evidence of V on this point. He spoke of first hearing any suggestion that the applicant claimed to be married to his father in November 2011, before going on to describe earlier conversations with his father about his marital status, but then conceding that he had heard some years ago about the claim of marriage made by the applicant.

The applicant's adoption of Mary's name and details

92. The applicant has undeniably used Mary's identity as her own for most of the past 35 years. Only recently, with the arrival of these proceedings, has she begun the complex process of disentanglement. A lot of time has been spent by both parties in an effort to deny knowledge and responsibility for this sustained deception, and to blame the other for it. It is clear to me, however, that both of them knew perfectly well what they were doing, and I impartially reject their evidence on this issue. They settled upon the plan so that the applicant, who had no right to be in the United Kingdom, could live here in the guise of Mary. That has led to a number of serious consequences, not least that the two children's birth certificates contain incorrect information about their mother, and that the applicant was for years paid benefits and a pension to which she was not entitled.
93. The applicant asserts that she thought that her status in England was regular as a result of the respondent's efforts and that the false information on the joint passport was the result of a mistake on his part. My finding that she was deliberately assuming Mary's identity over such a long period does not sit easily with a conclusion that she was married to the respondent all the time, and hence eligible to apply for leave to remain in her own right. This would have been of some significance to the applicant, whose sister had been deported.
94. Nor, so far as I am aware, was there any attempt to regularise the applicant's immigration status under her own name.

The respondent's marriage to Mary

95. I accept the evidence of the respondent and Mary that they were married by native law and custom in 1967, and that they had definitively separated by 1976. Polygamous civil marriage is not permitted and I accept Mary's evidence that, having remarried in a civil ceremony in Nigeria in 1977, she arranged for the return of the dowry in 1980 to remove any lingering worry about the status of her second marriage.
96. I have no expert evidence about the date upon which the respondent and Mary could be considered to have become divorced. It is clear that by 1976 both considered themselves 'free' and that Mary considered this to be an acceptable basis for remarriage. For what it is worth, in April 1976 at the time of the birth of their first child, she was using her second husband's surname.
97. I note the absence in the evidence in this case of any contemporaneous record of the customary marriage between the respondent and Mary.

The parties' whereabouts in June 1977

98. The joint passport in the name of the respondent and Mary has been closely studied, though not forensically examined. It gives rise to numerous questions that cannot for the most part be answered. In the first place, the original passport has been extensively damaged, according to the respondent in a flood, and some pages appear to have been torn. The picture of Mary that must once have appeared beneath that of the respondent has disappeared, with each party blaming the other for removing it. To further complicate the matter, the applicant produces a photocopy of two pages only, taken by her before the passport was cancelled in 1985. In the place for the spouse's photograph, a picture of the applicant has been crudely substituted for or placed over the original photograph of Mary – the official stamp that would have covered the original photograph does not extend onto the substitute photograph. Both parties accuse the other of adding the new photograph. Finally, a mystery surrounds the whereabouts of the original photocopy, which was not limited to two pages and was submitted in 2012 by the applicant's solicitors to the Home Office IND. It is recorded by the Home Office to have been returned to the applicant's immigration solicitors, but it has not been seen by this court.
99. Like everything else concerning the applicant's status, I think it likely that any changes that were made to the passport, or to copies of the passport, would have been as part of a joint effort by the parties.
100. What is undeniable is that the original passport in its damaged form contains no evidence of any trip by the respondent in or out of the UK in 1977, nor any travel by the applicant or respondent into the UK in 1977/1978, nor any trip by the applicant to Nigeria in 1983, coinciding with the counterpart air tickets that she produces. It is possible that some such details appeared on parts of the passport that are now missing or illegible, but it is in my view unlikely that the passport was used for travel in 1977/1978. If the applicant is correct, there would have to have been the following stamps, none of which are seen: (i) UK exit stamp and Nigerian entry stamp for the respondent to go to Nigeria for the marriage, (ii) Nigerian exit stamp and UK entry stamp for respondent's return to England, (iii) UK exit stamp and Nigerian entry stamp for the respondent to go back to Nigeria to collect the applicant, and (iv) Nigerian exit stamp and UK entry stamp for the couple's final return to England. That is a total of eight stamps, and it is not likely that these appeared in the passport, but have since been obliterated.
101. The applicant's fall-back argument is that the respondent may have had more than one travel document. She produces a household bill in a variant of one of the respondent's family names. He denies that this referred to him, but I find that it did. Nevertheless, there is no evidence that the respondent had another passport in a different name, and had he used a different family name, the Nigerian High Commission would no doubt have details. It is also not clear why another travel document should have been used only for these contested trips, when the respondent travelled profusely on the joint passport at other times.
102. I also find that the respondent probably attended Mr JO's wedding in London on 2 July 1977, but that does not mean that Mr JO can vouch for the respondent's presence in London throughout the previous month, as he purported to do. Mr JO says that he met the respondent in 1965, but in assessing the closeness of their relationship by 1977, I note that Mr JO had never met Mary or the four children.
103. The respondent's daughter P gave evidence that she first met the applicant when she was 8 or 9 and still going to school in Catford. This entailed a bus journey for herself and C1 from the then family home in East Dulwich. She described being accompanied on the bus throughout 1977 by the applicant, and specifically in June 1977, though she had no recollection of the arrangement at other times, for example during 1976 or 1978. I do not doubt that the applicant accompanied the children to school by bus at times, but I cannot rely in P's evidence, given 35 years after the event, about exactly when this was. I also note the respondent's evidence that there were times when the children were fostered.
104. Overall, there is no evidence that the applicant or respondent left and returned to the UK in 1977/1978 in the manner alleged by the applicant. Such documentary evidence as there is in the form of the joint passport and the partial photocopy points the other way.
105. It is also of some significance that there is no evidence (even from the applicant herself) of her leaving the UK between 1977/1978 and 1983 at the earliest, this being a time when the respondent himself was travelling constantly.

General points made by the parties

106. The applicant says that she had always wanted to be married to the right man and would not have come to England or had children or cared for six children had she not been married to the respondent. It would not happen in her family, which is Christian.
107. The respondent says that he decided not to marry the applicant because he had reservations about her character from an early stage. If they had actually been married, he would never have gone to such lengths to disprove it. How, he asks rhetorically, can he be shown to have been in Nigeria in 1977?

Discussion

108. This matter unfortunately has many similarities with the notorious case of M v M-T [2005] EWHC 79 (Fam) (Charles J), where a dispute about whether a customary marriage had taken place likewise led to cross-allegations of theft and forgery, and multiple disputed events, with witnesses lining up on both sides. In that case, Charles J said this:

1. … The oral evidence and the documents demonstrated that both parties are quite prepared to be highly selective, to exaggerate, to tell lies and to use tactical devices to advance their case or to further their goals.

2. It follows that I am sorry to have to record that in my judgment neither party was generally doing their best to give me a truthful account of events to the best of their recollection. This means that in resolving the relevant factual issues for present purposes I have to look at the limited common ground and third party evidence that is not partisan and weigh the competing accounts of the parties with, and against, it.

These observations apply equally to the present case. M v M-T was however a forum dispute and not a finding of fact hearing, and I can only adopt Charles J's further remark that:

41. On the information before me, I have concluded that the trial judge will have a difficult task …

109. Unfortunately, my findings establish that neither of these parties is reliably honest and that it is therefore necessary to view any statements they make with great caution. I have rejected evidence from them both about the impersonation of Mary. I have rejected the applicant's evidence about any official registration of marriage, about the circumstances of the 1992 forgery, about the theft of documents and about the village trip. I have rejected the respondent's evidence about the 1986 letter and his calling the applicant 'my wife', about his use of another surname for himself, and about the reconciliation meeting. There are numerous other miscellaneous shortcomings and inconsistencies in the evidence of both parties.
110. Of course, since the marriage either did or did not take place, one party's lies are designed to lead the court to a false conclusion, while the other party's are misguidedly told to bolster a true case.
111. I take account of the fact that (while the burden of proof is on the applicant), the respondent is in the position of trying to establish a negative. As against that, although marriage is a matter of status, there is no special standard of proof: the question of whether the event took place is as much a question of fact as anything else.
112. Lastly, I echo what was said by Bodey J in El Gamel v El Maktoum [2012] 2 FLR 387:

There are some aspects of this case which simply do not fall into place easily like a good jigsaw. There are some issues and features which would and will stick out and grate, whichever conclusion I reach on the key factual issue.

Conclusion

113. I have carefully considered the manifold shortcomings in the evidence given by the respondent. Despite that, I have concluded on the balance of probabilities that the applicant and the respondent did not participate in a ceremony of marriage, customary or civil, on 20 June 1977 or at any other time.
114. My reasons are these:

i. The only direct evidence of the ceremony comes from the applicant herself. She is someone who used another person's identity for about 35 years. She has lived the life of an older Nigerian woman with a different name. This demands an ability to maintain a sustained deception and to lie to countless people: indeed it becomes automatic – when I asked her for her date of birth, she gave Mary's date of birth before recollecting herself. While the respondent, in my view, bears at least an equal share of responsibility for this deception, it is the applicant who has most often had to pull it off in practice. I must therefore treat her unsupported evidence (and indeed that of the respondent) with considerable care.

ii. The only supporting evidence about the ceremony itself is the affidavit evidence of the uncles. While these may have been created on the dates stated, they frankly raise more questions than answers. In particular, despite much thought, I cannot construct a reason for the 1977 affidavit having been sworn at that time and using the name Mary. The apparently non-existent address is also troubling and unexplained. I can see why an affidavit might have been produced in 1991, given the possession proceedings, but there are so many unexplained features about that document that I cannot in the end place weight upon it in a case where the applicant has produced a proven forgery dating from the following year. I therefore conclude that little if any weight can be placed on these three copy documents. To the extent that they can be considered genuine, they could equally have been designed to assist the applicant in matters of immigration or litigation over the family home.

iii. There is not a scrap of circumstantial evidence that shows that either of these parties was in Nigeria in 1977. The applicant does not possess the least memento of the alleged wedding. While I would not put it past the respondent to have made every effort to obliterate all evidence of a marriage, had there been one, I very much doubt that he could have succeeded so completely.

iv. Likewise, there is not a scrap of evidence that the applicant went back to Ghana in 1977 or travelled to the UK in 1977/1987.

v. Although, against the background of this case, any document has to be treated with suspicion, the joint passport is in my view a strong indicator that neither party left the UK in 1977.

vi. The lack of any real substance to the evidence about the details of the marriage troubled the Nigerian court and it troubles me. I refer to the date (which seems to spring only from the uncles' affidavits), the venue, and the changes in the applicant's case about whether there was a certificate or a registration.

vii. While I fully accept that the applicant wanted, and was entitled to want to be married, I find that the joint ruse of using Mary's identity served as a workable second best solution, and one that did not leave her open to the risk of being refused admission to the UK if she left it. In effect, she became a wife by substitution, with a ready-made identity that served her practical purposes and those of the respondent very effectively. Her evidence about returning to Ghana while the respondent sorted out the immigration position was unpersuasive, when in fact no effort was made by anyone to regularise her immigration status. I also reject her evidence that she thought the joint passport details were a mistake by the respondent.

viii. In my view the reason for the 1992 Defence and Counterclaim referring to a marriage in '1975 or before' is because the applicant was seeking to maintain her identity as the wife Mary in that official forum. It may be that the reason why the proceedings came to an end was because the respondent would have been equally implicated if the impersonation was exposed. Then, he had a choice about whether to press the issue; now, he does not, though he has tried to mitigate the position by lying to protect what he repeatedly called his 'credibility'.

ix. There is no evidence that (aside from the uncles and the sister-in-law, whose evidence does not assist the applicant) anyone on either side of the family in Africa regarded the couple as being married. While the respondent is someone who might be capable of a clandestine marriage if it suited his purpose, I can see no such purpose in circumstances where the applicant had a ready-made means of remaining in the UK as Mary. It also strains credulity that a marriage could have remained unknown to so many people for so long. Had the respondent wanted to keep a marriage quiet from his family, it is unlikely he would have chosen Lagos as the venue.

x. Distasteful though it is to find that the applicant has invented her detailed account of the marriage event, I regret that I am driven to that conclusion. Her description is neither particularly improbable nor particularly idiosyncratic, but it did not emerge until her statement in April 2012, months after the respondent's early robust denial. In that situation, the account she gives is the only one she could give, neither more nor less.

xi. The fact that the parties lived together in England as if married suited them both at the time and the fact that they were known as such was convenient and socially acceptable. For an unmarried couple in the 1970s to refer to each other as husband and wife would not have been unusual; here the applicant was impersonating an ex-wife, so it would have been positively advisable.

115. For these reasons, I declare that these parties are not and have never been married.
116. Despite my criticisms of the applicant, I reach this conclusion with some regret, given the financial consequences for her, as being in much the weaker position of the two parties.
117. MO, Rereover, as someone who acted as and was acknowledged as a wife, it is undoubtedly extremely hard on the applicant that she does not have the status and protection that she deserves. This family lived together for some ten years, and she brought up the parties' own children for most of their childhoods with no support from the respondent beyond the use of the family home. She also played a large part in bringing up his children with no support from him or from their mother. Now she is left without a remedy, the children having grown up.
118. However, facts are stubborn things and the task of the court is to do its best to identify what happened, not what ought to have happened. The fact that the respondent can (to say the very least) take no pride whatever in his conduct is, I am afraid, neither here nor there.

Matrimonial Causes Act s.11d

119. This provision, relied upon by the respondent, reads as follows:

Nullity

11 Grounds on which a marriage is void

A marriage celebrated after 31st July 1971 shall be void on the following grounds only, that is to say—

…

(d) in the case of a polygamous marriage entered into outside England and Wales, that either party was at the time of the marriage domiciled in England and Wales.

Feor the purposes of paragraph (d) of this subsection a marriage is not polygamous if at its inception neither party has any spouse additional to the other.

120. The respondent submits that if he did marry the applicant, it occurred at a time when he was not yet divorced from Mary and that accordingly the marriage was polygamous. He further contends that in 1977 he was domiciled in England and Wales, having been resident here since 1964 and worked and paid taxes here. He draws attention to his subsequent naturalization and citizenship.
121. For the purpose of my decision, I shall assume in the respondent's favour that he was not divorced from Mary until 1980 and that any marriage in 1977 was therefore polygamous. However, his domicile of origin is Nigeria, and he is plainly now domiciled in Nigeria. The question is whether he changed his domicile to England and Wales in the meantime.
122. I refer to Rayden and Jackson on Divorce and Family Matters 18^th Ed. at T2.121 under the heading 'Change of Domicile':

Any person not under disability may, at any time, acquire a new domicile by residing in another country with the intention of continuing to reside there for an indefinite time coupled with the absence of genuine intention of returning to reside permanently in the country in which he was hitherto domiciled.

123. My finding, notwithstanding a concession that the applicant at one stage made but later withdrew, is that the respondent was not domiciled in England and Wales in June 1977. I accept that he resided here at that time with the intention of continuing to reside here for an indefinite time but not that he lacked a genuine intention of returning to reside permanently in Nigeria. The respondent's roots in Nigeria are deep, and even when he resided in London he returned there constantly. On the evidence presented in these proceedings, I infer and conclude that he always intended to return permanently at some later stage. His eventual return, planned in 1985, begun in 1987 and complete by 1989, speaks of the uninterrupted continuation of his Nigerian domicile.
124. Accordingly, any marriage, though possibly polygamous, would not have been void. However, in the light of my prior finding on the facts, this conclusion is of no practical effect.
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