Strike out applications and bigamy

PF v QF [2024] EWFC 10 (B)

This was the Husband’s application to strike out the Wife’s claim for financial remedies. The parties married in 2001 in Bangladesh and separated in 2020. However, it was the Husband’s case that the Wife had committed bigamy because the decree absolute from her previous marriage had not been pronounced until 2002 i.e. the year after they had married. It was therefore undisputable that the Wife was still married to her first husband when she married her second Husband. That second marriage ended with an undefended decree of nullity in 2021.

It was HHJ Reardon’s task to decide whether the Wife could and should be able to pursue her application for financial remedies.

Although the central fact of there being overlapping marriages was agreed, there remained other relevant factual issues in dispute. HHJ Reardon found both parties to be cynically poor witnesses. The material findings were:

1. The Husband at the material time knew that the Wife was still married to her first husband;
2. The Wife also knew that at the material time she was not divorced from her first husband. Although the divorce proceedings, initiated in 1999 had been long and protracted, the Wife did not have the mistaken belief that she was divorced by the time of the second marriage;
3. The Husband took the lead in arranging the parties’ marriage ceremony and the Wife was only informed shortly before the ceremony. Nevertheless, both parties consented to the marriage.

The Husband argued that the principle of ex turpi causa – one should not profit from one’s own crime – should debar the Wife’s application. He relied on the Court of Appeal judgment in Whiston v Whiston [1995] Fam 198 in support.

The judgment of HHJ Reardon provides some very useful reminders for practitioners (and bigamists):

1. There is nothing within the Matrimonial Causes Act 1973 to prevent an application for financial remedies following a bigamist marriage;
2. The Court of Appeal had already in Rampal v Rampal (No 2) [2002] Fam 85 put beyond doubt that Whiston did not set an automatic bar to applications for financial remedies consequent to a bigamist marriage;
3. As per the Supreme Court in Wyatt v Vince [2015] 1 All ER 755, the touchtone of strike out applications is whether the underlying application is “legally recognisable”, or not. However this is wide enough to encompass an argument founded on the principle of ex turpi causa;
4. For the ex turpi causa principle to operate, the offence must be sufficiently grave and further there must be a causal link between the offence and the alleged profit. One may query in light of White and the well-known authorities that follow, whether (most) applications for financial remedies are about “profit”.

In conclusion HHJ Reardon did accept that she had jurisdiction to entertain the strike out application. However, in circumstances where both parties knew of the relevant circumstances at the time of their marriage and neither party had been mislead, it was not appropriate to strike out the Wife’s claim. In fact, there are clear public policy arguments in favour of considering the Wife’s claim where a long social and economic partnership had existed. To conclude otherwise would be “to create a real risk of injustice”.