Sir Jonathan Cohen. This is a successful application of NO (herein referred to as ‘F’) to strike out MT’s (herein referred to as ‘M’) application for nullity pursuant to FPR 4.4 on the basis that it was an abuse of the court’s process. The court applied the test in HMRC v Kishore [2021] EWCA 1565.

Background

In 1974, F married G (a non-party) in Nigeria in a valid statutory marriage. Nigerian law dictates that a person who has been through a statutory marriage cannot, while still married, take another spouse by way of customary marriage.

F and M met in Nigeria in 1992. The parties separated no later than February 2003. The hotly contested issue was whether, as M contended, the parties went through a customary marriage on 16 March 2002. F’s case throughout was that he was never married to M nor had he undergone any relevant ceremony.

This case has consumed 21 years of litigation in England and Nigeria, under the Matrimonial Causes Act 1973, Schedule 1 Children Act 1989 and Part III of the 1984 Matrimonial and Family Proceedings Act 1984.

In 2003 and 2004, M filed separate divorce petitions setting out that the parties had customary marriages in Nigeria in 1993 and 2002 respectively. M sought a decree of nullity for the 2002 marriage on the basis that F was already married.

In 2005, Charles J stayed the matter in the English courts for the Nigerian courts to determine the issue of marriage. Ultimately, in 2012, the Court of Appeal in Lagos determined there had been no statutory or customary marriage. The matter returned to Charles J in late 2012, who delivered judgment in late 2013 dismissing M’s petitions.

M appealed to the Nigerian Supreme Court. The matter was heard in 2024. The only things the parties agreed on, about what transpired at that hearing, were that M withdrew her application, and it was dismissed. M then went on to apply in England for a nullity order in May 2024. F applied to strike it out.

Discussion

The learned judge, Sir Jonathan Cohen, referred himself to the 2013 judgment of Charles J, and the finding there was no customary marriage in 2002, and to the notes from the Supreme Court, that M withdrew her appeal and it was dismissed. The judge was satisfied that no findings of customary marriage had survived the Nigerian Court of Appeal determination and, even if they did, they would not be valid on account of F’s statutory marriage to G.

In respect of the application to strike out, Sir Jonathan Cohen set out the test to apply in accordance with HMRC v Kishore [2021] EWCA Civ 1565 at [22]:

(a) Is it an abuse of process for the claimant to seek to litigate in the present action the same issues which were raised, but not adjudicated upon, in the first action which was struck out?

(b) If the answer to (a) is ‘yes’, should I, in the exercise of my discretion, nevertheless allow the action to proceed?

If the answer is yes to both (a) and (b) then the exercise of discretion should be approached as follows:

‘In order to exercise my discretion so as not to strike out the present action, some special reason needs to be identified which, having regard to the overriding objective, would mean that it was just to allow the present action to proceed.’

Outcome

M’s nullity application related to the same issues the court considered in 2013. No special reason could be found to exercise discretion and therefore M’s application was struck out.