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Home > Family > England and Wales > 2008-09-22 - High Court of Justice, Ben Hashem V Ali Shayif And Others, (...)

2008-09-22 - High Court of Justice, Ben Hashem V Ali Shayif And Others, [2008] EWHC 2380 (FAM)

Family · England and Wales · Divorce · Religious marriage

Whether bigamy prevents a claim for ancillary relief

Key facts of the case - The Husband (S) and wife (H) had a civil marriage in London on 3 October 1998. Their Islamic marriage took place on 25 November 1998. Both parties had originated from Yemen and S became a citizen of Saudi Arabia while H became naturalised as a British citizen. S had previously been married three times, in 1965, in 1978 and in 1985 and had divorced his first and second wives (by talaq) in 1979 but was still married in 1998 to his third wife, when his marriage with H took place. The marriage effectively broke down in 2004. In prior divorce proceedings in Britain their marriage was declared to be void by reason of polygamy because, at the time it was celebrated by civil proceedings, S had another wife. The judge nevertheless pronounced a decree nisi (the first step in ending the marriage in English law). Following that decree, S registered a talaq divorce in Saudi Arabia. One of the claims made by S in these ancillary relief proceedings, which were started by H, was that H should not benefit from any claim because she had knowingly entered into a polygamous marriage which was an effectively criminal act under English law.

Main reasoning of the court - Judge Munby held that a claim of ancillary relief under sections 24 and 25 of the Matrimonial Causes Act may be affected by the criminal conduct of a party, but the bigamy in such a case was not a serious enough case of criminal conduct so as to prevent the court from allowing a claim of ancillary relief. In this case, the effect of the bigamy was marginal. Both parties were aware that their civil (English) marriage was bigamous, both went into it with their eyes open, neither was the victim of any deception or overbearing conduct, and there was little to choose between them in terms of criminal, social or moral ‘guilt’. The parties’ contemporaneous religious marriage, which was obviously a matter of importance for each of them, was valid. Whatever view the law of England may take, in their own eyes and in the eyes of their god, the husband and the wife were indeed just that – husband and wife.

Comment - This case arose after several other ‘satellite’ cases in the English courts and other cases have followed after this judgement. This case also concerns other points of law including the extent to which, in a claim for ancillary relief, one of the spouses could be said to own assets, despite being held in trust or being held by companies, that should be brought within reach of a court order by ‘piercing the corporate veil’. However, the important matter summarised here is the extent to which bigamy prevented a claim for ancillary relief being made and, evidently, the court thought that it should not prevent such a claim since the seriousness of the criminal conduct involved was at the lower end of the scale. The view taken by the judge here has not however prevented other recent cases, where bigamy has either taken place or has been imputed, being prosecuted in the criminal courts.

See the decision: High Court of Justice, 2008-09-22, [2008] EWHC 2380 (FAM).