I suspect that many non-lawyers believe that the courts can pass judgment upon pretty well anything. Of course, it is not true. Sometimes, a court is asked to do something that it simply does not have the power to do.
Such was the situation in the recent case Ogunware v Ogunware.
The case concerned an application by a man (for reasons that should become obvious, I will not call him “the husband”) for a declaration that an alleged marriage between him and a woman in Nigeria in 2006 did not, in fact, take place. The woman was the respondent to the application.
The facts, such as they are, can be very shortly stated.
Marriage certificate
A ‘marriage certificate’ exists, which purports to show that the parties were married on the 30th of December 2006 at the marriage registry in Lagos, Nigeria. The certificate was produced by the woman. However, the man states that he did not attend any such marriage ceremony and that the registry in Lagos have confirmed that they have no record of the marriage certificate.
Notwithstanding the above, divorce proceedings took place in Nigeria in 2013, and a divorce certificate was issued on the 2nd of December that year.
The man has been a resident in this country for many years, and he owns property here. He believes that the woman alleges that the parties were married in order to support a claim for financial relief, in particular against his property in this country (such a claim can be made in this country, following a foreign divorce). Accordingly, he made his application.
Application for declaration of marital status
The application purported to be for a declaration of marital status, made under Part III of the Family Law Act 1986. Section 55 of that Act sets out the declarations that the court can make, as follows:
(a) a declaration that the marriage was at its inception a valid marriage;
(b) a declaration that the marriage subsisted on a date specified in the application;
(c) a declaration that the marriage did not subsist on a date so specified;
(d) a declaration that the validity of a divorce, annulment or legal separation obtained in any country outside England and Wales in respect of the marriage is entitled to recognition in England and Wales;
(e) a declaration that the validity of a divorce, annulment or legal separation so obtained in respect of the marriage is not entitled to recognition in England and Wales…
It will quickly be seen that paragraphs (a) and (b) could not apply here, as the man was claiming that there had never been a marriage. Similarly, paragraphs (d) and (e) were not relevant, as the man was not seeking a declaration regarding the validity of a divorce. That left only paragraph (c). However, Mr Justice Holman, dealing with the application, found that that paragraph could not apply either, as the word ‘subsist’ presupposes something which did previously exist.
In short, the court did not have the power to make the declaration that the man was seeking, and accordingly, his application was dismissed.
So what to do?
Well, the woman could make an application here for a declaration that the marriage was valid, but until she does so, the court here can do nothing. Mr Justice Holman also made the point that if a court was asked to determine whether there was a valid marriage, the best place for the matter to be dealt with would be the courts of Nigeria, which are far better equipped than the courts of England and Wales to get to the truth of the matter.
You can read the full judgment here.
This is another unfortunate situation, more so complicated. Most Nigerians don’t take the legal side of marriage seriously until it’s late. No matter how you look at it, marriage is a contract and should be treated as such from day one.