Can I claim financial remedies if my marriage is annulled?

You can apply under the Matrimonial Causes Act 1973, for a range of financial orders and when determining what the appropriate order is, the court must consider the same factors as they would for a financial application following divorce. This is true whether the marriage is void or voidable.

However, nullity raises certain unique issues in relation to financial remedies that would not apply on an application for divorce: the status of non-qualifying ceremonies, and the consequences of the offence of bigamy.

First, it is important to note that no financial remedies are available under the Matrimonial Causes Act 1973 to the parties to a ‘non-qualifying ceremony’ (frequently referred to as a ‘non-marriage’).

The courts have further specified that, in the case of an application for financial relief following annulment or divorce in another country, the marriage brought to an end must meet the requirements of a valid or void marriage under English law for a claim to succeed. Therefore, if a marriage dissolved abroad would have been a non-qualifying ceremony in England and Wales, then there will also be no financial remedies available to the parties.

You can find out more information on the distinction between void and voidable marriages and non-qualifying ceremonies in our previous articles.

Where one or both of the parties to a marriage were already married or in a civil partnership at the time of the marriage, the marriage will be void on account of bigamy. Bigamy is, as well as a ground for nullity, a criminal offence. Financial remedies applications in bigamy cases have therefore raised their own particular concern for the court: should someone who has committed the offence of bigamy be able to benefit financially from it by applying for financial remedies?

The current position is that while the courts can debar a claim on public policy grounds due to the unlawful actions of the applicant, they are not bound to do so and all the circumstances of the case, including the level of culpability, will be considered.

There is a line of cases dealing with the issue of financial remedies following annulment on grounds of bigamy. These are discussed below if you would like to explore this further.

If you suspect your marriage may be invalid then we can advise you on this and on any financial claims. If you suspect you went through a non-qualifying ceremony, then we can also advise on potential financial claims under alternative legalisation such as the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) or Schedule 1 to the Children Act 1989.

Whiston v Whiston[1]

In this case, the Court of Appeal barred the respondent from her financial remedies claim on the basis of her being guilty of the crime of bigamy. The judgment was ambiguous as to whether this set down a general rule that all bigamists were prevented from making financial remedies applications, or whether the decision was predicated on the level of guilt of the respondent in that case.

S-T v J

In S-T v J[2], the majority of the court treated Whiston as establishing a rule but limited its scope. In this case, the applicant for financial remedies had committed an offence under the Perjury Act 1911 by claiming to be a bachelor when they were a ‘female to male transsexual’. The court did not debar the claim, applying Whiston only to cases where the marriage itself was the criminal act (as in bigamy) distinguishing the applicant’s perjury as a collateral matter.

Whiston and S-T v J sat uncomfortably together, however, as the culpability of the parties in both cases seemed on the surface to be comparable and yet only one was allowed to proceed with their claim.

Rampal v Rampal

The Court of Appeal resolved the position in Rampal v Rampal[3]. Thorpe LJ held that there was no rule that a bigamist could not be entitled to financial remedies. Instead, the general rule was that where the question of debarring a claim on public policy grounds arose, the decision would depend upon ‘an appraisal of the seriousness of the crime in all the circumstances’.

Ben Hashem v Al Shayrif

In that line, the court in Ben Hashem v Al Shayrif[4]  stated that, as both parties were aware of the bigamy and had not been deceived or under duress, there was very little to distinguish between them in terms of guilt and as such, the bigamy should have ‘little, if any, impact’ on the parties’ financial claims.

[1] [1995] Fam. 198

[2] [1997] 1 FCR 349

[3] [2001] EWCA Civ 989

[4] [2009] 1 FLR 115