A tale of two wives: Recognition of an Overseas Divorce

Family trainee solicitor Kauser Fadal discusses this interesting case concerning two wives, a bigamous dead husband, and some judicial guidance on which of the wives should be permitted to take out Letters of Administration.‍

There are occasionally cases that invoke themes that form the basis of what it means to be a spouse and the overarching obligations associated with marriage that the parties do not often consider at the time of the marriage. These obligations do however become apparent at the time of death and in the case of Ezinne Uchechukwu-Onwubiko v Ihedinma Onwubiko & Ors [2023] EWHC 2812 (Fam) (16 October 2023), we find an unusual scenario where the court has been asked decide whether the second wife or the fifth wife of a deceased husband was the ‘true’ wife. The answer to this question would lead to a grant of a Letter of Administration entitling the true wife to act as the deceased’s next of kin, to take custody of his body for burial and to make funeral arrangements.

By way of background, the fifth wife married the deceased on 16 April 2019 under the civil and traditional laws of Nigeria. She produced a certificate of marriage and a Declaration of Customary Marriage. When they married, the deceased told the fifth wife that he had divorced his four previous wives. By 2018, the deceased and the fifth wife’s relationship had broken down and divorce proceedings had started. The Decree Nisi, the conditional order of divorce, was granted and a financial remedy hearing was due to take place in October 2021. On 21 September 2021, the husband was found dead.

On 8 October 2021, the second wife told the Coroner’s Office that she was contesting the fifth wife’s status as next of kin. Her case was that she had never formally divorced from the deceased and so she was his next on kin. It was the second wife's case that the marriage to the fifth wife was bigamous and void under section 11(b) and (d) of the Matrimonial Causes Act 1973 as she was still married to the deceased at the time of his marriage to the fifth wife. A draft Judgment dated 28 June 2022 found that the second wife was the 'true' wife of the deceased as there was insufficient evidence to prove that there had been a valid divorce.

The fifth wife’s case was that a customary divorce had taken place between the deceased and the second wife which was recognised in English law and meant that the deceased was free to marry the fifth wife and, by extension, the third and fourth wives. The fifth wife subsequently reopened the proceedings on the basis that new documentation had been found from the Nkwoegwu Customary Court in Nigeria allegedly dissolving the marriage between the deceased and the second wife. The document was considered by two retired Judges from the Customary Court of Appeal who inspected the document and the court’s records. They found that the newly discovered documentation was not genuine.

The law that was considered in this case was Section 45 and 46 of the Family Law Act 1986. Section 46 deals with the grounds for recognition of an overseas divorce and states that the validity of an overseas divorce, annulment or legal separation obtained by means of proceedings will be recognised if it is effective under the law of the country in which the divorce was obtained and, at the relevant date either of the parties to the marriage were: -

i. habitually resident in the country which the divorce, annulment or legal separation was obtained;

ii. Was domiciled in that country; or  

iii. Was a national of that country.

It was agreed by the second wife that although her and the deceased were habitually resident in the UK, both were Nigerian nationals at the time of the putative divorce.

It was ultimately found that the fifth wife would have had no idea the deceased had not divorced from the second wife at the time that she married him and no fault was ascribed to her for what had happened. The Judge found that the fifth wife had been the victim of the deceased’s behaviour as he wanted a divorce from the second wife and took steps to obtain it but never followed through. The Judge therefore declared that the marriage of the deceased and the second wife never ended in a divorce and as such, the marriage of the deceased and the fifth wife was not a valid marriage. The second wife was declared to be the surviving spouse and the next of kin of the deceased. The second wife was therefore entitled to take custody of the deceased’s body for burial.

An interesting feature of this case was that the Judge referred to the criminal case of R v Lucas [1981] in order to deal with the issue of lies and false documents admitted in the case. The principle from this case is that if, after a witness has given evidence, the court concludes that the witness has lied, it does not follow that they have lied about everything in their evidence. Nor can the lies themselves provide proof of the fact or facts alleged. The Judge adopted this direction in this case and concluded that just because a document had been produced which she concluded to be false, it did not mean that the event it purported to provide evidence of did not happen.