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Darnton v Darnton & Attorney General [2006] EWCA Civ 1081

Husband’s application for permission to appeal a decision refusing to rescind or set aside decrees nisi of divorce, on the basis there had been no marriage in the first place. Application refused.

Darnton v Darnton & Attorney General [2006] EWCA Civ 1081

Husband's application for permission to appeal a decision refusing to rescind or set aside decrees nisi of divorce, on the basis there had been no marriage in the first place. Application refused.

This case involved an extraordinary protracted history of litigation. The Husband (H) was of white British ethnicity and the Wife (W) was of Indian ethnicity. The central issue was whether they were validly married. The parties underwent a purported ceremony of marriage and lived together as husband and wife for 10 years and had 2 children. W presented a petition for divorce. H countered with an allegation that they had never been validly married and cross-petitioned in the alternative. He asserted that under Indian law the marriage was valid only in the event he had converted to Hinduism, which he had not done. H added an application for a declaration that he had not lawfully been married to W. Substantial expert evidence was adduced of a conflicting nature. The Attorney General became an intervener and procured his own expert evidence agreeing with W's. At the hearing a compromise was reached whereby H sought permission to re-amend his answer so that instead of denying he had been validly married he admitted and averred that he had been validly married. All parties invited the judge to dismiss H's application and invited the court to grant cross-decrees nisi of divorce. H felt it appropriate to include words 'without deciding whether H is a Hindu' in the order but this was not stipulated to be a condition precedent to agreement. In any event the Judge elected to omit these words. The parties confirmed the truth of their allegations that the marriage had irretrievably broken down and Decrees Nisi were pronounced there and then.

Thereafter H applied for permission to appeal decrees nisi upon basis there was no valid marriage. He argued before Ward LJ and Buxton LJ that the court had failed to discharge its duty under section 1(3) MCA 1973 to enquire into the facts alleged by the parties. The Court construed section 1(3) as casting upon the court a duty to enquire only into such facts set out in section 1(2). The Court also dismissed H's suggestion that he had been pressurised into accepting the compromise. The Court therefore refused permission to appeal.

H applied to HHJ Meston that the decrees of nisi of divorce, which had been granted to both parties against the other, should be rescinded or set aside and that either the petitions should be dismissed or reheard. H's main application was to rescind the decrees pursuant to section 9(2) of MCA 1973. In the alternative he sought a rehearing under rule 2.42(1) of the FPR. H's main points before HHJ Meston can be summarised as follows:

- There could be no divorce as there had been no valid marriage;
- The Judge was wrong to interpret section 1(3) in the way in which he did;
- Breach of his Convention rights under Article 9– the decrees granted constitute him, against his will, an adherent of the Hindu religion and infringe his right to freedom of religion;
- Breach of his Convention rights Article 6 – the proceedings were not conducted on a level playing field in that his resources placed him beyond the eligibility of public funding and therefore he could not be represented.

HHJ Meston dismissed H's application and ordered H to pay W and Attorney General's costs on an indemnity basis. H sought permission to appeal these orders. He argued that the Judge was biased in favour of arguments of Attorney General and it was outside the boundary of the Judge's discretion to make an order for costs.

Held, refusing permission to appeal.

Wilson LJ observed that the crucial feature of section 9(2) is the failure of a party granted a decree of divorce to apply for it to be made absolute. It was clear that the Wife had a reason not to apply for Decree Absolute as once proceedings in the Court of Appeal were on foot the validity of the decree was in issue and thereafter she was attempting to proceed with claims for ancillary relief which may have been jeopardised by pronouncement of Decree Absolute. Section 9(2) provided only the most tenuous vehicle for the sort of application mounted by H.

HHJ Meston was bound to adopt the Court of Appeal's construction of section 1(3). However even were section 1(3) to require enquiry into the 'fact' of a marriage it is plain that, where it is apparent to the court that both parties accept that the marriage is valid and its validity is confirmed in two expert reports, the court's duty under section 1(3) is already discharged even though it retains a power to enquire further if it wishes to do so. Therefore even had the judge been under a duty to enquire into the allegation that there was a valid marriage it is clear that the court had sufficiently discharged its duty.

Wilson LJ considered it unarguable that lack of legal representation in civil proceedings constituted an infringement of rights under article 6. In dismissing H's article 9 argument, Wilson LJ considered that H had given his free consent to the grant of decrees and they did not force Hindu beliefs upon H in any way. The decrees reflected his acceptance of the fact that his conduct would probably lead an Indian court to conclude that, for the purposes necessary to enter into a valid Hindu marriage, he had accepted Hindu beliefs.

The Court confirmed that the Attorney General is party-neutral and was not concerned about H's allegations of bias on the basis of the Judge's past career at the Bar and the occasional service of the government in family proceedings.

Wilson LJ felt that the proceedings before the Judge and the proposed appeal were an abuse of process of the court. He considered all H's points to be without merit. Whilst the Court did not make a civil restraint order against H, Wilson LJ highlighted that the total absence of merit both of the application before the Judge and the Court of Appeal was likely to form part of the court's survey in any future consideration by a court.

Accordingly permission to appeal is refused.

Digest prepared by Lynsey Cade-Davies, 29 Bedford Row

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