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Mendal v Mendal [2007] EWCA Civ 437

Application for second permission to appeal in a case where the applicant was seeking to overturn an order in ancillary relief proceedings on the grounds that the marriage was bigamous. Application refused.

It emerged in the original proceedings, and was common ground, that the respondent's divorce in Brasil had not been formally dissolved at the time of this marriage. However the trial judge had found that the respondent had not deceived the applicant and she had genuinely not realised that she was still married: this finding was supported by the first appeal judge. In this application for a second appeal the judge could only concern himself whether there was an important point of law to consider. While Hughes LJ states that "it might be arguable to debate when an application for ancillary relief is not debarred in limini by the rule of public policy applied in Whiston" he found that no crime had been committed so the principle in Whiston could not extend to the respondent: this was a void marriage not a bigamous one.


Case No: B4/2007/0533
Neutral Citation Number: [2007] EWCA Civ 437

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 24 April 2007


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MENDAL (Appellant)

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MENDAL (Respondent)

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(DAR Transcript of
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Judgment (As Approved by the Court)

Lord Justice Hughes:
1. The district judge made an order for ancillary relief in matrimonial proceedings, following a decree of nullity. His order was appealed to the circuit judge, Lord Meston QC, who upheld him. Mr Mendal now seeks permission to bring a second appeal to this court. There is quite a history of disputes between the parties to the marriage and they involve some acrimony. The suggested point of law can be stated quite shortly. Mr Mendal relies on Whiston v Whiston [1995] FLR 198. The ceremony of marriage between himself and the applicant took place when, as a matter of fact, the lady applicant's divorce from her previous husband had not yet been pronounced final. Says Mr Mendal, therefore the marriage was bigamous. Therefore the claim for ancillary relief was founded on moral turpitude. It was an example of an action which was barred by the principle ex turpi causa and Whiston v Whiston explains its application to the particular situation of a bigamous marriage.

2. I hope Mr Mendal will forgive me for referring to himself by name and to the lady with whom he went through the ceremony as Miss Santana, since plainly in the end they were not, though they may have thought they were, husband and wife.

3. She is of Brazilian origin. She was previously married in Brazil in 1984 and there were two children of their marriage. She and her Brazilian husband separated and later she came to the United Kingdom. There were divorce proceedings brought in Brazil, apparently brought by her Brazilian husband. They involved initially a claim for judicial separation and later an application for divorce.

4. On 23 December 1997, she and Mr Mendal went through a ceremony of marriage at an English Registry Office. As is now common ground, the final Brazilian decree of divorce was not pronounced until 24th April 1998, that is to say, four months after the English Registry Office ceremony.

5. The district judge, hearing the application for ancillary relief by Miss Santana, specifically tried the question of whether, when she went through the English Registry Office ceremony, she did so knowing that her Brazilian marriage had not yet been dissolved and associated with that, the question of whether she had deceived Mr Mendal into thinking that she was single, when she knew that she was not.

6. In order to resolve that question, the district judge heard both parties and considered any evidence which either of them wished to put before him. He found, having heard that evidence, that at the time of the English ceremony Miss Santana genuinely believed that the divorce had gone through. He also found that Mr Mendal had not been deceived by her.

7. Mr Mendal then appealed that finding and also the making of the ancillary relief order to the circuit judge. He was entitled to do so. The appeal took the conventional form. The judge was not asked to hear the evidence again, but he did make enquiry into the facts and Mr Mendal has told me today that he put before him examples of what in his contention is Miss Santana's dishonesty in relation to other allegations, so that the judge could consider the material which had not been before the district judge.

8. The circuit judge held, however, that there was no reason to disturb the findings of primary fact which had been made by the district judge. On the contrary, he concluded that there were quite strong reasons supporting the findings of the district judge. He makes it clear that he took into account the strong criticism which Mr Mendal had made of Miss Santana's truthfulness in relation to other matters, for example in relation to allegations which she made of domestic violence, which Mr Mendal contends were simply untruthful.

9. The reasons for the circuit judge declining to upset the decision of the district judge are set out at paragraphs 53 and 54 of his judgment. It is not necessary to read them out, but they include, though they are not limited to, the following.

10. First, it was common ground that Miss Santana had told Mr Mendal about her previous marriage. There was no question of it having been concealed and she had no reason whatever to pretend that the divorce had already gone through if she knew that it had not.

11. Secondly, although there was a police investigation, the Crown Prosecution Service, on reviewing the case, determined that there was not enough evidence to prosecute her for bigamy; that is to say, for knowingly marrying a second time when she knew that he divorce had not gone through.

12. Thirdly, unfortunately Mr Mendal's evidence had to be approached with a degree of caution where it diverged from that of Miss Santana because, as the circuit judge held, of a combination of his intense hostility towards her and an unfortunate history of dishonesty in other contexts.

13. Lastly, it was common ground that Mr Mendal had accepted the description of Miss Santana in the Registry Office documents as a spinster, although he knew perfectly well that she had been married before. The explanation that he gave to the circuit judge, which was that was a correct description since she had not previously been married in the United Kingdom, was one which the circuit judge found unconvincing and one can understand why.

14. Now in this appeal, were it to have sufficient grounds of success to proceed, Mr Mendal would wish to challenge the finding of fact that Miss Santana was unaware that the divorce had not gone through when she went through the English ceremony, and likewise the finding that she had not deceived Mr Mendal. He has drawn attention to two particular examples of what he says are Miss Santana's demonstrated untruthfulness in relation to different matters.

15. One is an allegation which she made in the course of County Court proceedings for an Occupation Order. She alleged that she had been struck and that violence had been used against her by Mr Mendal. She made a statement saying that she had bruises and scratches as a result. She said that she had been to her doctor; whereas, as Mr Mendal points out, the doctor's report, whilst it shows that she did indeed complain that she had been used with violence, found scratches but not bruises. That is the kind of material which needed to be before the tribunal deciding the credibility of the witnesses. It may well have been, but in any event it would only be of limited significance. It may be that she exaggerated the extent of her injury; the doctor certainly found some, but not the bruises. Whether that means she was untruthful when she asserted that, at the time of the Registry Office ceremony, she believed that her divorce had gone through, was an open question which had to be decided by the district judge and reviewed by the circuit judge.

16. Secondly, Mr Mendal complains that over a substantial period he has been misused by this lady. She has extracted money from him by pretending to attempt a reconciliation which she never really meant to undertake. She has obtained a Visa to remain by saying that she has been used with violence when he says she has not and he goes on to say that she has extracted money from a new boyfriend in a similar way and in one way or another has ruthlessly deceived him.

17. That is his side of the story. Hers is no doubt different. The important thing to remember is that these kinds of allegations would go to the credibility of the witnesses. They would be for the trial judge. They are not something which can reviewed upon appeal in this court.

18. That would be so, even if this was a first appeal. In fact, it is not. This is a second appeal and a second appeal to this court can be entertained only where the case raises an important point of principle or practice, or there exists some other compelling reason for the court to hear it. A challenge to the findings of primary fact and a challenge to a decision on the credibility of the witnesses simply cannot begin to meet those criteria.

19. So there cannot be a challenge to the findings of fact to this court, and any proceedings in this court would have to be approached on the basis of the findings of fact of both the district judge and the circuit judge. That means that it would have to be approached on the basis that Miss Santana did not know she was still married when she went through the English ceremony and did not deceive Mr Mendal.

20. That still leaves the possible question of law. It seems to me that the scope of the principle examined in Whiston v Whiston is in some respects capable of giving rise to an important point of principle. If, therefore, there exists reasonable prospects of success, permission to appeal should be given. For my part, I would accept that the trilogy of cases on this point might be argued to leave some as yet unanswered questions about the scope of the principle which underlies Whiston. The cases are Whiston itself; S-T v J [1998] FLR 103; and Rampal v Rampal [2002] FLR 85.

21. In particular I am prepared to assume -- I say no more than assume for the purposes of argument -- that it might be arguable to debate when an application for ancillary relief is not debarred in limini by the rule of public policy applied in Whiston, even if the applicant had at the time of the ceremony of marriage guilty knowledge that there was a subsisting marriage. What, however, is not arguable is that a party who was unaware that a previous marriage still subsisted can possibly be caught by the Whiston principle.

22. What Mr Mendal would want to argue is that in any event this marriage was bigamous and Miss Santana had to assert a bigamous marriage in order to get her claim for ancillary relief off the ground. That, I am afraid, is mistakenly to confuse a void marriage with bigamy. That is something which may easily be done; in popular parlance, a second marriage when there is a subsisting first one, is often described as bigamous.

23. The ground on which such a second marriage is void is stated by Section 11(b) of the Matrimonial Courses Act 1965 in these terms:

"At the time of the marriage, either party was already lawful married."

The word "bigamy" does not appear and there is good reason for that. A second marriage, whilst the first subsists, is void under Section 11 whether or not the criminal offence of bigamy has been committed. The criminal offence of bigamy involves a guilty mind, at least to the extent that a defendant who honestly and reasonably believed that his or her first marriage had been dissolved does not commit a criminal offence.

24. The principle which underlies Whiston is one of public policy. It is that a person cannot profit from his or her own culpable crime. The emphasis is on the last word: there has to be a crime. The trilogy of cases to which I have referred make it clear that the principle cannot apply except where the applicant knew that he (or in this case she) had no right to marry, and deceived the other party.

25. In particular, Ward LJ made this crystal clear in S-T v J. Ward LJ's dissenting judgment in that case represents the high point of any possible application of the public policy principle enunciated in Whiston. He made it absolutely clear that culpable deception of one party by the other is the minimum requirement for the imposition of the public policy bar.

26. Thus, even if that dissenting judgment were later to be upheld, either in this court or anywhere else, it could not avail Mr Mendal because, on the findings of fact which have been made and which cannot be challenged, Miss Santana did not know she was not entitled to marry and she did not deceive Mr Mendal about her status. The law therefore cannot, in this case, assist Mr Mendal, and any appeal which he launched would be bound to fail.

27. In those circumstances, it would not be a kindness and it also would not be lawful for me to grant permission and it must be refused.

Order: Application refused.