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Leigh v Hudson [2009] EWCA Civ 1442

Application for permission to appeal against finding that a ceremony in South Africa did not constitute a marriage. Application refused.

A ceremony was held that to all intents and purposes looked like a marriage but was in fact, by agreement, a precursor to a planned, though later abandoned, marriage before a registrar in the UK. The facts of the case are set out more fully on Family Law Week at Hudson v Leigh [2009] EWHC 1306 (Fam). In this application counsel for the wife argued that the trial judge, in saying that the ceremony had given rise to a non-existent marriage, had in reality declared the marriage void which contravened s58(5) of the Family Law Act 1986.

Thorpe LJ rejects that argument, which had been considered below, and finds that the trial judge was plainly right to rule as he did.


Case No: B4/2009/2299
Neutral Citation Number: [2009] EWCA Civ 1442

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Wednesday, 9th December 2009


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LEIGH (Respondent)

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HUDSON (Appellant)

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(DAR Transcript of
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Mr Valentine Le Grice QC and Miss Rebecca Bailey-Harris (instructed by Messrs Russell Cooke) appeared on behalf of the Appellant.


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(As Approved by the Court)

Crown Copyright©

Lord Justice Thorpe: 
1. Mr Le Grice and Miss Bailey-Harris appear this morning for Miss Hudson.  She met Mr Leigh in the 1990s.  A relationship developed between them, and their daughter, I, was born on 2 June 2001.  In August 2003 Miss Hudson accepted Mr Leigh’s proposal of marriage.  She wanted a religious ceremony and he wanted a civil service.  He in particular wanted the civil service to be in England.  Miss Hudson wanted a religious service in South Africa, where the parties were largely living.  Arrangements were made with a priest to conduct a ceremony at their home on the outskirts of Cape Town.  It was plainly agreed that the marriage register would not be signed and therefore that the ceremony would not give rise to the status of marriage, and the words of the ceremony were slightly adapted to indicate that it was an event that was not intended to change status but was an event designed to accord with Miss Hudson’s religious convictions.  The ceremony took place on 23 January 2004 and shortly thereafter the couple came to this jurisdiction and endeavoured to arrange a marriage service at Chiswick House through the registrar in Richmond or Hounslow. 

2. Sadly, the relationship broke down before the civil ceremony and litigation broke out between them when Mr Leigh petitioned under section 55 of the Family Law Act 1986 for a declaration that the South African ceremony was not a marriage.  That petition was presented in August 2007 and in the same month Miss Hudson petitioned for divorce.  These two petitions came before Bodey J in April 2009.  He delivered a considered judgment on 5 June 2009 dismissing Miss Hudson’s petition and making the declaration sought by Mr Leigh on his petition.

3. Mr Le Grice has always challenged the legal validity of this outcome.  His reliance is on the terms of section 58(5) of the Family Law Act 1986. which insofar as is relevant states:

“No declaration may be made by any court, whether under this Part or otherwise—

(a) that a marriage was at its inception void.”

Mr Le Grice says that for a judge to declare that a ceremony gave rise to a non-existent marriage is only terminology.  The reality is that the judge is declaring the ceremony void, and accordingly that contravenes the plain terms of the section.

4. That argument was considered and rejected by Bodey J.  He found no direct authority but was impressed by the obiter observations of Hughes J in the case of AM v AM [2001] 2 FLR 6.  Mr Le Grice necessarily has to say that Hughes J was simply wrong in law.  The kernel of the judge’s conclusion in the court below is to this effect:

“So in my view the Court must be able, in the rare cases where such a point arises, to rule that some questionable ceremony or event, whilst having the trappings of marriage, failed fundamentally to effect one, such that it neither needs nor is susceptible to a decree of nullity to determine its lack of any legal status: ie to find in convenient shorthand that it is a ‘non-marriage’ or a ‘non-existent marriage’.”

The point has been considered in the context of an Islamic religious marriage which has no effect in law and which requires a subsequent civil ceremony.  That is broadly the situation that has been considered by the courts to date, and Mr Le Grice says that there are other cases in the pipeline.

5. I am in no doubt at all that Bodey J was plainly right to rule as he did, for the reasons that he gave, and I would refuse this application.

Lord Justice Wall:

6. I agree.

Lord Justice Patten:

7. I also agree.

Order:  Application refused.