The parties were divorced, but when the husband applied for ancillary relief, the wife petitioned for nullity on the basis that the marriage was bigamous. The husband countered that she had known that his first marriage had only ended after this marriage. His application was struck out under 25(2)(g)
Held: The husband’s application was re-instated on his appeal. There is no universal rule preventing a bigamist from exercising his statutory rights to ancillary relief, and the ex turpa non oritur actio rule must be applied according to the context. The judge had failed to allow for the knowledge of the wife of the fact of the bigamy, and the ancillary relief application should proceed. ‘As a general proposition I am not in favour of strike-out applications in the field of ancillary relief. The court has abundant discretion conferred by the statute itself and particularly section 25(2)(g), requiring the court in particular to have regard to the conduct of each of the parties if that conduct is such that it would in the opinion of the court be inequitable to disregard it. In the case of a statutory claim that is obviously dishonourable, modern practice enables the judge to curtail the claim at an early stage in the exercise of discretion under section 25 rather than on the application of any rule of public policy. ‘ and ‘I do not regard the rule in Whiston v Whiston as extending to exclude every culpable bigamist whatever the circumstances of the case. The court cannot be deprived of the freedom established through a line of cases in other fields to evaluate the nature of the crime itself.’
Judges:
The President – Lady Justice Butler-Sloss, Lord Justice Thorpe, Lord Justice Robert Walker
Citations:
Gazette 19-Jul-2001, [2001] EWCA Civ 989
Links:
Statutes:
Matrimonial Causes Act 1973 23 25(2)(g)
Jurisdiction:
England and Wales
Citing:
Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Cited – Tinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
Binding – Whiston v Whiston CA 8-May-1995
A bigamist is unable to claim ancillary relief in the second marriage; would be against public policy. Since bigamy was a serious crime which undermined fundamental notions of monogamous marriage, the Court would not as a matter of public policy . .
Cited – Regina v Secretary of State for the Home Department Ex Parte Puttick CA 1981
The applicant, then Astrid Proll, fled bail in Germany when awaiting trial on terrorist charges, entered England and under a false name, and married Mr Puttick. She resisted extradition saying that under the 1948 Act she was now a British National. . .
Cited – Regina v Chief National Insurance Commissioner Ex Parte Connor QBD 1981
The court was asked whether the rule against forfeiture applied so as to disentitle an applicant from receiving a widow’s allowance when she had killed her husband with a knife. She had been held guilty of manslaughter but simply placed on . .
Cited – Re Royse (Deceased) CA 1985
The wife sought to claim under the 1975 Act despite having been convicted of her husband’s manslaughter from diminished responsibility. She was the sole beneficiary under his will but was precluded by her conviction from taking any benefit under the . .
Cited – Re H (Deceased) 1990
The Plaintiff had stabbed his wife to death while acting under a delusion induced by a reaction to a drug that he had been prescribed.
Held: Public policy did not require in every case of the manslaughter of a spouse that the forfeiture rule . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 19 May 2022; Ref: scu.85661