KU v BI [2025] EWFC 296 (B)

Judgment date: 5 September 2025

https://caselaw.nationalarchives.gov.uk/ewfc/b/2025/296

Williams DDJ. Final hearing concerning the validity of a foreign marriage and whether financial remedy proceedings could be pursued.

Background and litigation history

The parties were in a relationship from 2013 and they lived together until the relationship broke down in 2023. They have three children together, aged 8, 10 and 12, none of whom have contact with the respondent.

The proceedings concerned KU’s application for divorce. She maintained that the parties married in Nigeria in 2013 by proxy. BI denied that a valid marriage existed on the basis that neither party were physically present at the ceremony.

Both accepted that BI was already married to someone else at the time of their alleged marriage. KU claimed that she only discovered this after their marriage; BI asserted that KU had always known. KU also contended that this prior marriage was one of convenience for immigration purposes, which BI disputed. BI’s first marriage remained undissolved at the time of the hearing.

At the first hearing, the court approved the instruction of a single joint expert on Nigerian marital law. A Nigerian legal practitioner produced a written report and gave oral evidence at the final hearing.

Legal framework

An English court will recognise a foreign marriage if it is valid under the law of the country where it was celebrated (Dicey & Morris, ‘The Conflict of Laws’, 16th ed; Berthiaume v Dastous [1930] AC 79).

Where the marriage requirements are not complied with, the marriage may be void or voidable, under ss 11 and 12 of the Matrimonial Causes Act (MCA) 1973 respectively.^[1] A decree of nullity does not preclude financial relief (s 21 MCA 1973).

Moylan J in Assad v Kurter [2013] EWHC 3852 (Fam) set out a three-stage approach to dealing with foreign marriages:

• validity is determined by the law of the foreign jurisdiction;
• the effect of that foreign law is analysed by reference to English law concepts of void, voidable and non-marriage;
• it is for the English courts to determine what remedy, if any, is available (Burns v Burns [2008] 1 FLR 813).

Expert evidence on Nigerian law

The expert explained that Nigerian law recognises two types of marriage: statutory (court) marriage and a customary marriage. The essential requirements for a valid customary marriage are:

• capacity of the parties;
• payment of a dowry/bride price; and
• a ceremony involving the handing over of the bride to the groom’s family.

Relying principally on a 2013 textbook, ‘Family Law in Nigeria’, and the authorities of Beckley v Abiodum (1943) and Ikebingwu v Okafor (1966), the expert maintained that the bride must be physically present for the handover. On this basis, he concluded that the parties’ marriage was invalid due to KU’s absence from the ceremony.

Held

The judge held that the first two elements of the customary marriage test were satisfied because (1) both parties had capacity and (2) a dowry had been paid.

Regarding the third element, the judge concluded that strict adherence to a formal handover was unnecessary on the facts. At the time of the ceremony, KU was already living with BI in England and she was pregnant. It was therefore clear that the parties were ‘united’. A video recording of the ceremony demonstrated that it took place with the knowledge and consent of both parties, and that considerable planning and cultural observance had occurred. Although BI initially denied the marriage, his oral evidence revealed that he had believed that that they were married and they lived as such.

The two authorities relied on by the expert were of a significant age and potentially related to a different world to the one present. They were also distinguishable because the respondent accepted that he consented to the marriage and knew it was going ahead.

The court accepted the expert’s evidence that a subsisting English statutory marriage does not preclude the formation of a subsequent customary marriage in Nigeria. Thus, the marriage between KU and BI was not invalidated.

Accordingly, the judge held that the 2013 ceremony would constitute a valid customary marriage under Nigerian law and should be recognised as valid in this jurisdiction. KU was therefore entitled to apply for a divorce and pursue financial remedy proceedings.

The judge further observed that, had the marriage been deemed invalid, they would have made a declaration of a void marriage based on the planning, consent, celebrations and the parties’ reliance on the marriage. A decree of nullity would still have enabled financial remedy proceedings to be pursued.

Costs

Given that BI was unsuccessful, he was not entitled to costs. KU, being legally aided, made no application for costs. The judge added that they would in any event been reluctant to make a costs order given the need to consider the full body of evidence.

This judgment has not been certified as citable pursuant to the Practice Note (Citation of Cases: Restrictions and Rules) [2001] 1 WLR 1001.