Henke J. Successful appeal of a fact-finding, despite such an appeal being ‘notoriously difficult’.

Facts

The parties entered into a relationship in 1995. They were Islamically married on 4 August 1999 and a civil ceremony was held at a Registry office on 14 December 1999.

The parties share two children, born in 2001 and 2010 respectively, who were the subjects of Children Act proceedings in which various findings had been made against the respondent husband of behaviours including assault and communication intended to cause anxiety.

The parties separated in 2013 and the appellant wife applied for divorce on 18 June 2022 relying on a marriage certificate. The respondent disputed the existence of the marriage in his Response and on 14 August 2022 made an application challenging the marriage certificate. The respondent’s position evolved so that at the time of the hearing before the district judge, his position was that the marriage certificate was authentic but he had not been present at the civil ceremony.

The question before the district judge was whether the parties were married in the civil ceremony. The district judge determined that the respondent was not present at the civil ceremony and therefore the parties were not legally married.

The parties’ positions and the law

The appellant wife appealed, arguing that:

1. it was wrong in law to state that the marriage certificate could not be relied on in isolation;
2. the burden of proof had been reversed, putting the onus on her to prove the validity of the marriage despite the marriage certificate;
3. it was an error to fail to apply the law on the presumption of marriage;
4. the judge failed to consider properly or at all that the civil marriage was a further example of control and that the respondent’s denial of the same was economic abuse as it prevented her applying for financial relief;
5. the judge failed to consider various factual features of the case, for example the respondent had displayed threatening and possessive behaviour and refused the appellant a divorce for a number of years;
6. ‘procedural irregularities’ relating to how aspects of the evidence were treated;
7. ‘aspects of credibility’ such as failing to give weight to previous findings against the respondent;
8. factual errors; and
9. infringement of her right to fair trial.

The respondent’s position was that the argument had no prospects of success (FPR 30.3(7)) and was fanciful (Re R (A Child) [2019] EWCA Civ 895) and that an order and not a judgment is appealed (Vaughan v Vaughan [2007] EWCA Civ 1085).

An appeal may only succeed, pursuant to FPR 30.12(3), if the decision is wrong or unjust on account of irregularity and the court must bear in mind the advantage the first instance judge had in seeing the parties and other witnesses. The court must also avoid a narrow textual analysis, treat the first instance judge’s findings with the appropriate respect, and remember the appellate court’s severe handicap in judging the credibility of oral evidence. It is the court’s duty to interfere where the appellate court is convinced that the judge was wrong (Sherrington v Sherrington [2005] EWCA Civ 326).

Mostyn J’s view in AA v NA (Appeal: Fact-Finding) [2010] EWHC 1282 (Fam) was that the appellate court is only able to say a finder of fact was plainly wrong if:

1. Their conclusion was demonstrably contrary to the weight of the evidence.
2. The decision-making process can be identified as being plainly defective so that it can be said that the findings in question are unsafe, including where there are ‘errors of principle as to, say, the burden or standard of proof, or a failure to take into account well-established principles as to the weight to be given to proven lies or litigation misconduct in reaching the factual findings’.

Outcome

The first instance judge had set out the law correctly and did not reverse the burden of proof. However, he did err in relation to the central factual issue as he found there was nothing before him to suggest the marriage certificate was not authentic and later on found the appellant would have had access to the various identification documents which would have been required by the registrar at the time of the civil ceremony. The judge speculated that the signature on the marriage certificate could have been a forgery; however, he did not find it was a forgery.

The judge also found that the respondent was not present at the civil ceremony. The respondent’s signature could not have been authentic if he was not present at the civil ceremony.

The learned district judge’s findings on this central issue were therefore inconsistent and could not stand.

Further, it was clear that the learned judge’s assessment of the parties’ credibility was central to his decision-making; thus his failure to consider the respondent’s conviction for perverting the course of justice was a material omission relating to credibility.

The judge also erred in his consideration of the parties’ respective motives and potential positive motives for entering into a civil marriage and failed to consider whether the respondent denied the civil marriage to defeat the appellant’s claims for financial relief.

Orders were therefore made allowing permission to appeal, allowing the appeal and setting aside the district judge’s order, and remitting for rehearing.