Intestate polygamists in the UK

John Hyde was ordained as a priest of the Mormon Church in 1847. He was married in Salt Lake City in April 1853, but later became disillusioned with and left the Church. He was excommunicated for writing and publishing anti – Mormon material.

John’s wife Lavinia left him, and subsequently remarried in what was then known as Utah Territory. John brought an action of divorce against his wife, for adultery.

English law could not recognise polygamy as marriage as it didn’t resemble the equivalent English institution. Notably, in dismissing the claim Lord Penzance pronounced:

“I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others”

which became the accepted definition of marriage in many common law countries, and was included in introduction to the civil marriage ceremony in England until the passage of the Marriage (Same Sex Couples) Act 2013.

Official Solicitor

The Official Solicitor is an individual, appointed by the Lord Chancellor who can act directly as solicitor for an individual in certain circumstances. The Official Solicitor has two principal functions;

  • represent children and adults who are incapable of representing themselves in various courts, as a last resort litigation friend; including as legal personal representative of last resort for the deceased estate, or trustee of a trust.

In most cases when acting as litigation friend the Official Solicitor instructs a firm of solicitors to act on the individual’s behalf. Notably, the Official Solicitor will only make decisions on behalf of that individual in relation to the specific issues before the court, and not in other decisions in that individual’s life.

A litigation friend ensures that those who do not have capacity to conduct their own court cases are heard before the court. The court can appoint anyone to be a litigation friend, however the court must confirm that a person is able to make fair and competent decisions about the case , and not have any adverse interests to the person on whose behalf they are acting as litigation friend.

The modern role of the Official Solicitor can be traced back to the 18th century when the Office of the Six Clerks assisted destitute litigants, lunatics and infants in Chancery suits. In 1981, the Official Solicitor became a statutory officer of the Supreme Court of England and Wales appointed by the Lord Chancellor as Official Solicitor to the Supreme Court under s.90 of the Senior Courts Act 1981.

Where an intestate leaves a surviving spouse and issue, under s 46(2) of the Administration of Estates Act 1925 the surviving spouse is entitled to a statutory legacy and a life interest in half the residue.

“(b) as to the other half, on the statutory trusts for the issue of the intestate.”

In Official Solicitor to the Senior Courts v Yemoh [2010] EWHC 3727 (Ch) the intestate was party to several polygamous marriages under Ghanaian customary law. The court was asked to consider intestacy rules concerning polygamous marriages given that the deceased had eight customary polygamous marriages, with associated numbers of children.

The court held that any spouse who had been lawfully married in accordance with the law of the place of an intestate’s domicile was entitled to be recognised in England as a surviving spouse for this purpose.

Benjamin Kodzo Yemoh died intestate on 20 September 1981 in Ghana. At the date of his death he owned real property in England (“the properties”) and personal property, primarily some cash in bank accounts.

Letters of administration were granted for the deceased’s English estate to Edmund Yemoh and Patience Frimpong on 17 May 1985. Several beneficiaries commenced proceedings against the administrator of the estate in 1996. The court appointed the Official Solicitor as Judicial Trustee of the deceased estate on 29 February 2000.

The properties have been sold and the value of the net residuary estate was £388,725.94, – subject to costs.

The Official Solicitor sought guidance from the court under s1(4) of the Judicial Trustee Act 1896 to assist conclusion of the administration of the estate.

The Official Solicitor obtained expert evidence that marriages in accordance with Ghanaian Customary Law are recognised in Ghana. Eight women, two through their estates, claimed they had such marriages with the deceased. The Official Solicitor has no reason to doubt seven of theses claimed Customary Law marriages.

The first defendant is a child of the deceased who has helped the Official Solicitor identify his full or half brothers and sisters. The Official Solicitor has created a schedule of those claiming to be widows and children of the deceased. The Court has doubts as to the veracity of the Ghanaian birth certificates and agrees the Official Solicitor can reasonably rely on the evidence he has already obtained about the scheduled children and treat and proceed on the basis that the schedule is accurate and reasonably identifies the many children of the deceased.

Section 1(1)(a) of the Inheritance (Provision for Family and Dependants) Act 1975 provides that a surviving spouse may bring a claim against a deceased’s estate if their will or intestacy failed to make reasonable financial provision for them.

In Re Sehota (Deceased) [1978] 3 All ER 385 the court considered historical public policy objections to polygamy in Hyde v Hyde and Woodmansee (1866) LR 1 P&D 130 and held that the wife of a polygamous marriage was to be treated as the deceased’s wife under the Act.

 Section 47 of the Matrimonial Causes Act, 1973 effectively abolished the common law rule with all forms of matrimonial relief available in the case of polygamous marriages.



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