HHJ Reardon. Application to strike out W’s FR claim resulting from her bigamy (ex turpi causa).

Background

At the time of the parties’ marriage in Bangladesh in December 2001, W was not yet divorced from her first husband. The parties had continued in their life together, raising two children, for 19 years. In fact, the marriage was void ab initio under s 11(b) MCA 1973, but the parties had continued to live as man and wife until their separation in August 2020. H applied for a petition of nullity in March 2021, and W subsequently issued Form A in September 2022 seeking financial orders. [Editor’s note: A party to a marriage that is void ab initio is nevertheless entitled to make an FR application.]

H claimed to have been unaware of W’s subsisting marriage and that W had told him she was divorced prior to the parties meeting. As such, prior to the FDA, H issued an application seeking to debar/strike out W pursuing her application for a financial remedy on the basis her bigamy had been so shocking that it was against public policy to allow W’s application to continue in accordance with the principles in Whiston v Whiston [1995] Fam 198.

W’s position was Whiston had not survived Wyatt v Vince [2015] 2 All ER 755 which had restricted the circumstances in which a court could strike out a financial remedies claim. The court did not have the power to strike out W’s application based on her bigamy, such that H’s application should be dismissed. In the event H’s application continued, she claimed H was aware she remained married, and he had supported her with her divorce, but at the time of the marriage in 2001 she did believe she was divorced and was not therefore a bigamist.

Findings

The court found both parties to be aware of W’s continuing marriage to her first husband at the time the parties married in 2001. Whilst the ceremony was arranged by H, perhaps secretly such that W only became aware very shortly before the ceremony, W willingly took part in it. Both parties knew the marriage was void throughout with no effect on the relationship, but both had decided to ‘weaponise’ this fact following the breakdown of the marriage.

Held

1. Whiston is one case in a significant body of case law which is supportive of the common law rule that a person should not profit from their crime (ex turpi causa). The decision in Wyatt was not concerned with the principle of ex turpi causa, nor can it be read to overturn an established common law principle which is applied across different contexts.
2. The ratio of Whiston should not be read as bigamy operating as a bar to a claim in financial remedies, but that ‘a criminal offence of sufficient gravity’ can. Whilst the culpability, ‘turpis’, of bigamy in 1995 was sufficient to debar the claim in Whiston, social attitudes towards behaviour may be viewed ‘very differently at different times’.
3. Any application to strike out or ‘debar’ an application pursuant to Whiston, or any other ex turpi causa principle where there is an established rule of law based in public policy, must fall within the scope of the strike out provisions FPR 4.4(1), most likely FPR 4.4(1)(b), and is capable of being struck out.
4. The gravity of the offence is a necessary but not sufficient ingredient of the ‘ex turpi causa principle’ which is triggered by a link between the offence and the claimed benefit. There is no rule that even very serious criminal conduct debars an application for a financial remedy, and in most cases conduct, where raised, is incidental to the application (MCA 1973 s 25(2)(g)) with no scope to strike out the application.

H’s application was refused. This was not a matter where W had sought to enrich herself by her bigamy. This was a long relationship, the parties had both worked, cared for the children, and appeared to have pooled their resources. It was not an abuse of process such that W’s application should be struck out. There were good public policy reasons for ensuring a fair division of the matrimonial assets, and the MCA 1973 confers power to the court to make financial orders after a nullity petition in cases such as this where a social and economic partnership existed, and not to do so would create a risk of injustice.