Partners in a partnership would be well advised to keep comprehensive documentation at every stage...
The issue of bigamy and its potential impact on a person's ability to seek financial remedies in a divorce came under the legal spotlight recently.
A husband made an application to strike out his wife's financial remedies claim on the basis that she had committed bigamy and deceived him into a marriage when she knew she was not free to marry. This deceit, he claimed, was so egregious that, as a matter of public policy, she should be debarred from pursuing any claim for financial remedies against him.
The husband based his application on a line of authority which suggested that, in some circumstances, a criminal act may 'debar' somebody from pursuing a claim for financial remedies, in accordance with the legal principle that a person should not be permitted to benefit from their crime – which, in this instance, was alleged to be the criminal offence of bigamy.
In contesting the application, the wife asserted that she was unaware that her first marriage had lasted beyond the date of her second marriage. She also claimed that, when they met, the husband knew she remained married to her first husband, and that he supported her with the paperwork for her divorce.
The Family Court therefore needed to establish what each party knew about the status of the wife's first marriage, and how it came about that they married at a time when she was still married to someone else. It also had to consider whether the power to debar a bigamous applicant from pursuing a claim for a financial remedy order still existed and whether it should be applied in this case.
The Court found that, at the time of the second marriage, both parties were fully aware that the wife was not divorced. Throughout their relationship, which lasted for over 20 years, they both knew that their marriage was legally void, but this was not considered a matter of real concern to either of them until the relationship broke down and they decided to weaponise the fact.
Both parties worked and cared for their children during the marriage, resulting in what appeared to be a 'fairly standard' pooling of assets. As a result, it was difficult to characterise the wife's claim for financial remedy as an attempt by a bigamist to enrich herself in a way that would not have been possible in the absence of a fraudulent or criminal act. There were clear public policy arguments in favour of recognising the partnership and ensuring a fair division of its assets. The husband's application to strike out the wife's financial remedies claim was refused.