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	England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Alfonso-Brown v Milwood [2006] EWHC 642 (Fam) (27 March 2006) URL: http://www.bailii.org/ew/cases/EWHC/Fam/2006/642.html Cite as: [2006] EWHC 642 (Fam)

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IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		27th March 2006

Mr Justice Singer :

1. I have heard five days of evidence and submissions in relation to this matrimonial suit, and this is my reserved judgment.
2. There are two issues for resolution in order to determine whether the Petitioner, Patricia Alfonso-Brown, is entitled to any of the relief which she seeks from the Respondent, Robinson Milwood. The first is whether the events which occurred at a ceremony which took place at Osu in Accra, Ghana on 27 December 1997 would constitute a marriage in accordance with the customary law of the Ga people, of which group the Petitioner is a Ga-speaking member. Logically, the second question only arises if the answer to the first is positive: did the Respondent intend there and then to marry her, such intention being a necessary ingredient for such a marriage to be potentially effective? In the event, as will appear, I feel confident about the findings of fact I will make in relation to the state of the Respondent's mind and his intentions, whatever the true answer be to the first question of fact I have posed, whether as a matter of Ghanaian law this ceremony could give rise to a customary marriage recognised in that country.
3. I have referred to the ceremony being 'potentially' effective, because the Respondent was at that date (as has been clearly established) still validly monogamously married to another woman whom I will call W1. Thus the marriage ceremony (if it would otherwise have been effective) would have been void for bigamy, both in Ghana and here, and therefore a nullity. That notwithstanding, if yes is the answer to both questions then the Petitioner would be entitled to a decree of nullity and thus to pursue financial claims in these proceedings.
4. I am satisfied from what I have read, seen and heard that it is the ability to make such claims, plus an ingredient of bitterness felt by the Petitioner as a woman ultimately rejected in favour of the Respondent's current wife, which drive this suit. For the point has been made that now it is clearly established that any otherwise effective marriage would have been void for bigamy she does not need to seek any further declaration or order to enable her to regard herself and to be regarded by others as free of any matrimonial bond to the Respondent.
5. The Petitioner is now 44 years old and the Respondent is 61. He married W1 in 1965. There were in fact divorced by decree absolute pronounced in September 1999 in proceedings commenced in 1998. The Respondent married his present wife in July 2003.
6. The Respondent spent his early years in Jamaica where he was born. At all times material to the issues before me he has been a minister with responsibility for two Methodist churches in North London. He is a theologian and qualified doctor of religion.
7. These parties met in about 1991 when the Respondent employed the Petitioner, then as now said to be a student, as a part-time assistant at a day nursery for which he had administrative responsibility. The Petitioner made it clear in one of the three affidavits she has filed in connection with these proceedings that their immediate affinity soon translated into a sexual relationship. At the time the Petitioner was herself married, and her own first marriage was not dissolved until 1994. From an early stage in their relationship however, according to her, she understood from the Respondent that he was no longer married to W1, that is to say that they were legally divorced. But when attempting a verbatim account of what she said he had said to her on the topic she attributed to him words and expressions far less definitive and far more ambiguous. Thus, she told me, he had from an early stage said his marriage was 'over', an equivocal expression. This trait or tendency to draw firm conclusions from words neutral in their effect was a feature of her evidence, and may well be a feature of her thought processes.
8. The essential issues therefore relate to the events and to this Respondent's participation and understanding and intentions in relation to them on the occasion of the traditional ceremony which was held in the compound of the Petitioner's parents' home in Accra.
9. Thereafter the parties returned to London and, according to the Petitioner, resumed cohabitation at his home. His case however is that W1 continued to live at that address, but separately, until 1999, and moreover that the Petitioner never moved in to live there at any stage.
10. By 2002 or 2003 the relationship between these parties had reached its terminal stages, and as I have stated it was in July 2003 that the Respondent married his present wife. In May 2004 there was a disagreeable confrontation when the Petitioner and a number of her supporters came to the church. The Respondent says that that was the first time that anyone had suggested that they were married as a result of what took place in Ghana, and that the purpose of the meeting was to extort money from him.
11. Certainly the initiation of formal hostilities in June 2004 had a financial flavour. The Respondent received notification of matrimonial home cautions placed on three properties owned and rented out by him in North London, and of allegations leading to restrictions on the title of three others on the basis that they were held by him on trust for the Petitioner. No evidence whatsoever supports the proposition which would properly found either inhibition. It does not, for instance, appear that the Petitioner asserts that either of them ever lived at these alleged matrimonial homes, far less that they did so or intended to do so together. The Respondent's solicitors asked in vain for evidence of the basis on which the claims were asserted. They also asked for evidence that the parties were married. It is true that a marriage certificate, said to have been misplaced, was referred to by the Petitioner's solicitors in correspondence. It is to this day impossible to know what that document, first referred to in correspondence in July 2004, was as no copy of it has ever been produced. But for a time reliance was placed by the Petitioner on a document which I have seen, procured in Ghana in May 2005 by her younger sister Catherine (who gave evidence before me), and that sister's Ghanaian husband who represented that he was the head of the Respondent's family. It is sufficient to say that the document is a grotesque compendium of errors obtained by multiple misrepresentations. It proves nothing about the quality or effect of the ceremony itself.
12. A petition seeking dissolution of marriage was finally issued by the Petitioner in November 2004, based on what was said to constitute the Respondent's adultery with the lady who was by then his current wife. The Respondent by his Answer denied that any ceremony of marriage had been performed, and said that if there was an apparently valid ceremony he had not consented to it so that it had had no effect. He asserted that what he had agreed to, and what he believed was happening, was a traditional engagement ceremony.
13. On 9 June 2005 directions in the suit were given by a District Judge. The parties were to file affidavit evidence by specified dates, and to agree upon and jointly instruct an expert in Ghanaian customary marriages. The evidence was to be complete in time for an estimated two-day hearing of the suit on 20 October 2005. Clearly the obligation to file affidavit evidence would be intended to extend to any witnesses relied upon by either party, and was not meant to be limited to that of the parties themselves.
14. The timetable slipped and the expert eventually agreed had not reported by the date of the hearing. Meanwhile, however, the Respondent had raised the point, and established by documentary evidence, that his marriage to W1 still subsisted at the date of the Ghana ceremony, and thus that even if what happened in Ghana could have amounted to a valid marriage there it was in fact ineffective, and would not be recognised here in any event. Baron J agreed, and made a declaration to the effect that in December 1997 the Respondent was not capable of entering into a valid marriage with the Petitioner, with the consequences just stated. She thereupon dismissed the prayer for dissolution of marriage in the Petition, but gave leave to the Petitioner to amend to seek a decree of nullity.
15. By now the Petitioner in an affidavit sworn at the end of July 2005 had made reference to the existence of a video recording of the ceremony, but she and/or her solicitors had ignored requests for a copy. This obviously crucial evidence, the only reliable evidence of what in fact transpired, was not made available to the Respondent until December 2005 as a result of a direction given by Baron J, and I will comment upon it to some extent at this point.
16. It is very lengthy (of the order of three hours) and the language used is almost entirely Ga. At very late stages of these proceedings, (including during the course of the hearing before me this month), the Petitioner sought to rely on three successive purported translations. They were not consistent with each other and were evidently partial in both senses of the word. They were hopelessly incomplete, and included biased comment to the effect that this video was of a marriage ceremony.
17. The video has an opening title sequence introducing itself, in English, as showing the engagement of the parties, with their names and the date specified, and so a bespoke piece of editing. Occasionally throughout its length the viewer is reminded by further overlaid titles that the event portrayed is the parties' Engagement Day.
18. A clearly much more comprehensive, and virtually uncontested translation, setting out the Ga text alongside the English translation, was commissioned by the Respondent in the interval between the second and third days of the hearing before me. Mr Benedict, by then counsel for the Petitioner, accepted the accuracy of the translation but for one word. He contended that a phrase translated as 'wishing to engage' the Petitioner in fact means 'wishing to marry' her. If so, it is surprising that none of the purported transcripts produced for the Petitioner include what she would regard as so favourable a reference to marriage, from her point of view. Mr Benedict's assertion, made on instructions as he is not a Ga-speaker, was however unsubstantiated and had no evidence to support it. Overnight the Respondent's solicitors did what they could to check and, for what it is worth, their second-hand information tends to confirm that the word used is specific to engagement rather than to marriage. In fact, as I find, in context there would be no particular significance if the word and phrase used did anticipate a marriage following at some stage after what clearly at the very least (as the Petitioner accepts), started off as an engagement ceremony. The question on which I heard so much oral and expert evidence is whether the engagement was immediately followed by a marriage ceremony, seamlessly as it were, on that same occasion.
19. Baron J gave the Petitioner leave to file a further statement but it seems that she was not asked to admit further evidence. In circumstances the detail of which emerges from the rulings I made at the time I declined to admit a lengthy affidavit from an extraneous witness which had very much at the last minute been served, but permitted the Petitioner to call her sister Catherine, whose statement had apparently been prepared at the beginning of September 2005 but not served nor even referred to until the week before the February hearing. I also declined the request of Miss Villarosa (who represented the Petitioner until shortly before the third day of the resumed hearing before me) for an adjournment to instruct another expert and for a proper transcript of the video to be obtained, again for the reasons I then expressed.
20. The expert evidence in the case came from Professor Woodman of the University of Birmingham School of Law, who was jointly instructed. He has made intensive study of Ghanaian customary family law and has written extensively on the topic over forty years. He produced a number of written reports. In making his first he was hampered by the fact that he did not receive the video. He was further hampered in relation to all his reports (but not in respect of the second tranche of oral evidence which he gave before me on 16 February 2006) by the absence of any reliable transcript, given that he does not speak the primary language of the tape, Ga.
21. Professor Woodman's opinion, once he had seen the video, was that the first and longest part (extending to just over an hour) recorded a traditional engagement. The Petitioner expressly accepts that this was so. The question therefore becomes, what if any features of what happened in that first part or subsequently point towards a marriage having been seamlessly solemnised then and there; and what is their cumulative effect in informing the Professor's opinion. Save to say that he did not suggest that I would be wrong to attach weight to them, he was however careful not to comment directly on the way in which the video was captioned, and on the admitted fact that on the conclusion of the engagement section mementos were distributed to those present which were inscribed with reference to the parties' engagement, rather than to any marriage.
22. Nor was the Professor in a position to, nor did he attempt to, comment upon the Respondent's state of mind and his understanding of what was taking place and of what to a very limited extent he actively participated in doing. He did however consistently make it clear that a necessary constituent of a customary marriage was the agreement of the parties to become and to be married.
23. The Petitioner's submission in relation to the events seen on the video is that a combination of factors manifest that this was a marriage as well as an engagement. Miss Villarosa set out those features in detail in a written submission dated 9 February 2006 summarising the Petitioner's case as it had by then developed. A number of the specifics upon which she relies in paragraph 2 of that document are in my view neutral in that they would apply equally to an engagement ceremony. Such neutral factors include that this was an occasion attended by senior members of the family, and that during the first hour of the video before an exclusively female audience comprising neither party there was a series of formal presentations of cash and gifts appropriate to an engagement. The presentation of a hymn book and money with which to buy a bible do not point specifically to a marriage rather than to an engagement. The lady conducting the ceremony did not refer to either of the conjoined rings as a wedding ring.
24. The single feature which ultimately tipped Professor Woodman into accepting that (subject always to the Respondent's necessary understanding and consent) this was a marriage was the presentation towards the end of the engagement ceremony of an envelope said to contain £1000 sterling in cash which was specifically referred to by a word in Ga signifying marriage money or bride price: a dowry payment. The envelope and its contents were described as dowry in the middle part of the ceremony, where the Petitioner's family representative recounts what has taken place before the audience of women to a group of men including no doubt the head of the Petitioner's household in a short sequence in an internal room. The Respondent was not present at this either.
25. The final relevant part of the video (followed by extensive scenes of dancing) shows the emergence of the Respondent from the house and his progress to a table where he sits alone awaiting the Petitioner. She then enters from the house attended by her spokeswoman and a number of children who are fanning her. She dances her way between the tables and seats herself next to the Respondent. People are eating and singing all around them, but they are the only people at the table. They are then shown standing with a lady next to them dressed in blue whose identity and function was never explained in evidence, and the two spokeswomen. The lady in blue holds the ring and offers up a prayer to which those present respond by saying 'Amen'. The prayer apparently offers thanks to God and invites the man to place the ring on the wife's finger. It is quite evident from the video that no one is translating the proceedings or any part of them to the Respondent. The Respondent places the ring on the Petitioner's finger and the woman dressed in blue can just be heard softly to say in English words including 'The Father, the Son and the Holy Spirit'. Neither party says anything at all throughout this part of the proceedings. He then kisses her and presents her with a bouquet of flowers from the table. Some photographs are taken. The scene then moves to them standing by a cake which they ceremonially cut. A male voice over the loudspeaker system encourages those present to hooray and some do so. It does not appear that the whole of the audience are intent upon watching this sequence, and indeed there is continuous movement as people move to and fro fetching and carrying food and drink. The film then moves to a sequence where the Petitioner is shown dancing first with another woman and then with the Respondent. The entire passage from where the parties are first shown standing by the table with the unknown woman in blue through to the conclusion of the cake cutting takes a mere two minutes on the video. The title 'Engagement Day' continues periodically to be superimposed from time to time throughout the video, at least up to this point.
26. With what seem to me to be very considerable reservations Professor Woodman came round to the view that the references to dowry pointed sufficiently to this being a ceremony involving marriage for him to conclude that that is what it was. He regarded these references (none of which, I emphasise, took place in the Respondent's presence or hearing) as tipping the balance. Contrary factors (before consideration is given to any relevant inferences which may be drawn from the Petitioner's evidence) were that he had never heard of a combined ceremony such as this. Indeed Professor Woodman's opinion and experience (both direct and recounted to him) was that the suggested combination of engagement and marriage ceremony into one event was unique. There would be no reason to have an engagement ceremony at all if the intention was to proceed immediately, or indeed later, to marriage but such an engagement was usual. He did have experience, where there was urgency, of the two ceremonies being separated by a few days. That said, he did not rule out the possibility that the families (or, in this case, the Petitioner's family and the Respondent personally) might agree to celebrate an engagement and a marriage in this foreshortened manner.
27. His is the only expert evidence in the case. In the light of that evidence I accept that there were sufficient ingredients of a marriage ceremony as would justify the parties and those present concluding that a marriage had indeed taken place, subject always of course to the important question of the extent of the Respondent's understanding and willingness to participate in an event having that result.
28. Much of the Petitioner's evidence was directed to attempting to establish events which she said took place and which, had they done so, might have strengthened the Professor's ultimate opinion. Much of her evidence, if accepted, would also go to the issue of the Respondent's understanding and intentions. I shall deal with a number of the issues raised by the Petitioner which, in aggregate, I find to have no substance nor, in many cases, anything to support them on the video which she says is their source.
29. First and foremost, her case has been that everything significant was translated to the Respondent. But he was not there for the first two sections, there is no acceptable evidence that any comprehensive translation of what was going on was given to him, and it is clear that no translation whatsoever was afforded to him when he was actually on camera. What the Petitioner said about this at paragraph 14 of her first affidavit was:

'The marriage was done in the Ga language and translated into the English language for the benefit of the Respondent and other guests who were not conversant with the Ga language. An elder of my family was the master of ceremony and who made sure that everything that was said was translated into the English language as it happened. A video recording of the proceedings would be available in future to attest to this.'

30. At paragraph 18 of the same affidavit she asserts that after the presentation of the dowry speeches were made by the elders of her family admonishing them to try and live in marital bliss, a libation was poured and they were declared husband and wife. No such features appear on the video. The Petitioner asserted that the Respondent blessed the ring, whereas it is plain from the video that he did not do so.
31. The Petitioner had the greatest difficulty in identifying the passages upon which she relied in the video which she said pointed to this being a marriage. In my judgment the references in the video which she ultimately identified are of no evidential assistance when read and seen in their context, and have no force one way or the other in identifying this as a marriage in addition to the engagement which it admittedly was.
32. Ultimately the Petitioner at the hearing was driven to say that the words for marriage and for engagement were interchangeable, a proposition with which the Professor disagreed. In his opinion and in his experience people differentiated between an engagement and a marriage ceremony, although they might speak of individuals as Mr and Mrs, husband and wife or married without too much concern for their strict legal status.
33. As I have said, neither the Petitioner nor the Respondent were present during the lengthy engagement process conducted before an all-female audience under the awning by traditional representatives of each family of the about-to-be betrothed. These were, or certainly often are, ladies hired for the occasion. The ceremony is in many respects a set-piece with scope for ad-libbing. Gifts (including envelopes containing gifts of money, in this case £20 or £30) are made by the man, through his representative, to the woman's family at each stage of the offer and acceptance ritual. Household goods, jewellery, clothing and cosmetics are carried in and handed over in the same way. There is a strong sense, confirmed by Professor Woodman, that what one is watching is in large measure well-established play-acting and includes lines recognisable and familiar to the audience, who respond with pleasure and expressions of humour at what for them are familiar and rather florid metaphors and amusing flights of fancy and of fantasy.
34. Although the Respondent (and for that matter the Petitioner) may in defiance of tradition have observed this part of the day's activities, or parts of it, at some distance from the windows of rooms in the house beside the awning, there is no evidence acceptable to me that the Respondent was treated to anything resembling a comprehensive translation of the proceedings. It is thus entirely understandable that he would have failed to pick up the suggestion (or its significance) that one of the last envelopes contained £1000 in sterling as the agreed dowry or bride price for his marriage to the Petitioner.
35. The Respondent denies making any money, of that order or at all, available to go in those envelopes. There is no evidence before me which I find persuasive or acceptable that such moneys came from him, or were in the envelope at all. This could well, in my judgment, be an example of artistic licence on the part of the representatives, designed to impress the audience with the wealth of the suitor just landed, and the worth of the fish he in turn hoped to hook.
36. The suggestion that there was paid or indeed contemplated such a huge (in Ghana) sum of dowry money sits unhappily with the Petitioner's description of her family's modest requirements for her hand, at paragraph 17 of her first affidavit. She stated:

'Custom demands that the bridegroom provides the dowry which depending on the stature of the bride and the wishes of the family may comprise of the Bible, rings, jewellery, cloth (which is optional) as well as the bride price. Some families would demand a lot of stuff, but my family merely settled on the Bible, rings, schnapps and jewellery. The Respondent indeed provided all of these and thus on the day of the ceremony produced a full dowry corresponding to the wishes of my family …'

and she exhibited a photograph showing the bible and rings and what she said was the bride price, in an envelope. It is perhaps surprising that she did not until a later stage mention the huge generosity of the Respondent in providing so large a dowry as £1000. It must be recalled that at the date of that affidavit the Petitioner had not produced the video for inspection, and there is no suggestion that the Respondent ever saw it until some time after the hearing before Baron J.

37. I now pass on to consider whether, on the evidence, it was the joint intention of the parties and, in this case, of the Petitioner's family that married should be the parties' status by the conclusion of the ceremony. I repeat the necessity for there to be such a common intention that a marriage should there and then be celebrated.
38. The Petitioner's case is that the Respondent enthusiastically participated in preparations for a marriage, as opposed to an engagement. I regard that as inherently improbable given his knowledge that he was still married to W1. But I cannot rule out the suggestion on that basis alone.
39. The Respondent is emphatic that all he anticipated and intended was to become engaged, and that his involvement in preparations for the event were minimal. As against that the Petitioner (and her sister Catherine) maintain that he involved himself in the minutiae of the customary requirements and the preparations for a marriage while still in England, and that he purchased a number of the presented items, including jewellery, in England and in Ghana. They also say that he supplied the necessary funds for those purchases and the costs of the celebration itself, and (not least) that he produced the cash gifts including £1000 as the dowry.
40. As will have become apparent, I do not accept the Petitioner as a truthful witness. I regard her sister Catherine as so engaged on her behalf as to be unreliable. I therefore do not accept their evidence as to the preparations and the extent of the Respondent's involvement in them, and that they were through and through for a wedding rather than (or as well as) an engagement.
41. As I have already indicated, the nature of the Petitioner's case in relation to the ceremony, changed dramatically over the lifetime of her Petition. Her first account was manifestly inaccurate, that the entire proceedings were translated into English for the Respondent's benefit as they went on. Her final suggestion to support the proposition that a marriage took place proceeded on the basis that the words engagement and marriage are used interchangeably, but (somewhat contradictorily it would seem) references to husband and wife or to a couple as being engaged are used only when that is indeed their status. As I have said, Professor Woodman takes an opposite view. Nor does he agree with what became the Petitioner's assertion that a combined ceremony all on one day was commonplace in 1997.
42. The Petitioner's attempt to deprive of their force the fact that the leaving presents for guests and the video so emphatically refer to the parties' engagement therefore fails. Many of the other factors on which she relies are neutral, for (for example) once one accepts that the finger on which a ring was undoubtedly put serves both as an engagement ring finger and as a wedding ring finger, the act is consistent with the one as well as the other. The Petitioner's attempt to persuade me that it is normally a senior family member rather than the betrothed who places a ring on the engaged woman's finger at the end of an engagement ceremony was, in my judgment, embroidery. Professor Woodman knew of no such tradition.
43. There patently was no exchange of vows, no admonition at the time the ring or rings were placed on the finger, and no libation poured. In view of her own evidence that her family's requirements were modest, the proposition that £1000 was put into the envelope is unsubstantiated.
44. The video title and the engraved and otherwise personalised presents were undoubtedly arranged by the Petitioner or her family, with some involvement by the Respondent in relation to any brought from England. They refer to engagement because that is what the Petitioner and her family planned and arranged.
45. The Petitioner's case that this was, to the Respondent's knowledge, to be and was a ceremony concluding their marriage is therefore inherently improbable. Such evidence as might support the conclusion that this was a marriage lacks anything like sufficient cogency to establish that the Respondent was aware he was participating in so significant an event.
46. I would therefore conclude that the Petitioner fails to establish that a ceremony of marriage was purportedly performed which lacked validity and effect only because of the Respondent's subsisting marriage. The burden of proof is upon her, and I find that she has not discharged it. If, arguably, once she has established that the ceremony in fact performed would ordinarily result in marriage, the burden shifts upon him to demonstrate his lack of understanding and consent, then he has in my view discharged that burden.
47. I reach that conclusion notwithstanding the fact that I approach the Respondent's evidence with considerable caution, as I am unable to accept it in its totality. He was extremely emphatic when repudiating those parts of the Petitioner's evidence and case which were put to him. He took this too far, in my view, when insisting, initially, that the engagement he accepted and asserted took place did not connote a promise of future marriage – subject of course to each party's ability meanwhile to terminate it. In my opinion he must have regarded this as an engagement to marry at some future stage, conditional (as it would need to be) upon the dissolution of his marriage to W1. I suspect that he was vague to the Petitioner about the state and status of his relationship with W1, but I do not accept that he ever represented to the Petitioner that that marriage was legally at an end.
48. I do however accept his evidence that until 1999 when he reached a financial settlement with her he and W1 continued to live separately at the same address, his address, throughout. Three witnesses (none of whom the Petitioner required to attend for cross-examination) support his case that the Petitioner did not live at or move into his home for lengthy periods or at all.
49. The Respondent denied that a combination engagement and wedding ring were selected and purchased by them both in each other's presence at Brent Cross in November 1996. His case is that she selected this jewellery in his absence and asked him to collect and pay for it. In his evidence to me he accepted that by that time he and the Petitioner had talked of becoming engaged, and that the rings in question were an engagement present. Yet in his affidavit evidence he had suggested that when he went to pay for and collect the goods he did not know what he was buying. He told me that he did not even ask to see the purchases and first saw them at the end of the ceremony in Ghana. I am unable to accept this evidence.
50. These defects do not however lead me to the conclusion that I should reject his evidence wholesale. Assisted by what I have found to be the improbability and indeed the wild extravagance of some of the Petitioner's assertions, for instance about what would be manifest from the video, there are important aspects of his evidence which I accept as accurate.
51. Thus, for instance, I do not accept that any discussions which may have taken place in advance of his departure for Ghana with the Petitioner or members of her family were in the context of marriage in Ghana on that visit. I accept that he was not aware of, and did not participate in or knowingly contribute to, the cost of any articles bought in England for use or presentation in the course of the ceremony. More importantly I accept his evidence that he made no money available to meet the various payments for that ceremony, including the traditional payments at the end of each stage of the engagement part of the event. Most significantly I am satisfied that he did not provide £1000 in cash to go in the dowry envelope, and would not have done so in any event if asked, and that if he had known that that would or could connote him and the Petitioner being man and wife by the time of the first dance.
52. I accept, in short, his case that he never had any intention to marry the Petitioner during the course of that day's events, and was not told in advance of or during their course that that was that was their nature and effect. I accept his evidence that he would not have been prepared to be married in that way on that day. I accept that he could neither hear nor more importantly understand what was being said and done on his behalf by the lady who played the part of his representative, and with whom he says he had no conversation about the event. I regard nothing which he in fact did during the last and only part of the event at which he was present as unequivocally referable to a marriage rather than to an exuberant traditional celebration of an engagement.
53. On those findings Professor Woodman has made it clear that this would not have been a marriage, lacking the essential constituent of both parties' consent. It is no surprise to learn that under customary law each party needs actually to consent to what in essence is a contract, whether to become engaged or to marry.
54. This case therefore turns on pure questions of fact. My finding that the Respondent did not intend to get married has the consequence that he did not do so, whether or not what would otherwise amount to a marriage took place. But I also feel able to make the additional finding that the Petitioner did not regard this as an event capable of binding them as husband and wife. She also, therefore, lacked intent as evidenced by the surrounding circumstances, such as the references to engagement on the video title and on the going-home presents for the guests distributed, be it noted, at the end of the engagement part of the ceremony rather than at what would be the end of the marriage ceremony if it had been a marriage. The desperate efforts made by the Petitioner and on her behalf to insist that what one sees amounts to a marriage persuade me that this has been an opportunistic attempt retrospectively to reinvent this event. I find that the Petitioner has known throughout that this was not a marriage.