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H v H (Queen’s Proctor Intervening) (Validity of Japanese divorce)

This judgment concerns whether a form of divorce in Japan, a kyogi rikon, is a divorce 'obtained by means of proceedings' for the purposes of s46(1) of the Family Law Act 1986.

In this case the husband was claiming for a decree of nullity on the basis that the wife was still married, as the form of divorce was not recognised here. Stephen Wildblood QC concludes that a kyogi rikon is a recognisable divorce for these purposes and refused to grant the decree of nullity.

_________________________________________

No. TA05D00069

No. TA05P00028

No. TA05N00145

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Between:

H Petitioner

-and-

H Respondent

-and-

The Queen's Proctor Intervener

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

Stephen Wildblood QC

This judgment consists of 186 paragraphs and has been signed and dated by the judge. Insofar as may be necessary, the judge hereby gives leave for it to be reported in anonymised form. The title of any report should be H -v- H (Queen's Proctor Intervening) (Validity of Japanese divorce).

H -v- H

Summary of my conclusion

1. In this judgment I conclude that a Japanese divorce, called a kyogi rikon, is a divorce 'obtained by means of proceedings' for the purposes of section 46(1) of the Family Law Act 1986. I decline to refuse recognition of that divorce under section 51(3) of the Act. I therefore reject the petition for nullity under section 11(b) of the Matrimonial Causes Act 1973.

Introduction

2. On the 24th February 1996 the Petitioner, whom I shall call "the husband", and the Respondent, whom I shall call "the wife", went through a ceremony of marriage at the Registry office in Taunton Deane; their marriage certificate is at A2-266. At the time of the marriage the husband was aged 45 and the wife was aged 35; the certificate describes the condition of both of them as 'previous marriage dissolved'.

3. The husband contends that the marriage is void under section 11(b) of the Matrimonial Causes Act 1973 on the grounds that, at the time of the marriage to the wife, she was already lawfully married. That contention is based upon the fact that the wife had previously married a man ('Etsuo') in Japan on 2nd November 1982; the husband contends that her marriage to Etsuo should be treated as subsisting since the form of divorce that was made in Japan relating to that marriage should not be recognised in this country.

4. All parties accept that the marriage to Etsuo should be recognised as valid under the domestic law of England and Wales.

5. Documentation has been produced that shows that her marriage to Etsuo was ended by divorce in Japan on 27th February 1985 (A2- 262 and A2- 263). The form of divorce suggested by that documentation is called a 'kyogi rikon'. In order to obtain such a divorce in Japan it is necessary to sign a form called a rikon todoke (this is explained at A3-716). The rikon todoke in this case is at A2-466 (and is translated at A2-463); that is a document that has to be examined with some care since it conveys information of importance to the facts of the case. It is accepted that, in so far as Japanese law is concerned, Etsuo and the wife were legally divorced on 27th February 1985.

6. A kyogi rikon is a valid form of divorce in Japan, (where, apparently, it is the most frequently used method of divorce – see A6-1187 and 1188). It is available under Article 763 of the Japanese Civil code (A2-716). That code provides that: 'husband and wife may effect a divorce by agreement' (A2-284). Under Article 739 of that code, the divorce becomes effective by notification in accordance with the provisions of the [Japanese] Family Registration Law. Without registration in accordance with the Japanese law there is no divorce. The provisions of that law are explained in experts' reports to which I refer later. In my judgment, however, it is significant to note that the divorce does not take effect as a result of the parties' agreement alone; for the divorce to be effective there must be registration in the manner prescribed by Japanese law. Registration is formative of (and essential to) the divorce; it is not simply probative of the divorce.

7. The contentions of the husband are embodied in his petition by which he seeks a declaration that the marriage is void (A1-17). That petition is dated 8th March 2005 and contains the following pleading: 'The Respondent was lawfully married in Japan to Etsuo . At the time of the purported marriage to the Petitioner that marriage had not been lawfully dissolved' (A1-17). On the 20th August 2005 the wife filed her answer to that petition rejecting the suggestion of an unlawful marriage and pleading that she had been effectively divorced from Etsuo (A1-29); her answer pleads: 'The Respondent's marriage to Etsuo was dissolved by a divorce… registered on 27th February 1985 at…..

8. Prior to the issue of the nullity petition, on 26th January 2005, the wife had issued a petition for divorce, relying on the ground specified in section 1(2) (b) of the Matrimonial Causes Act 1973 (A1-1). On 8th March 2005, the husband filed an answer to that petition (A1-15). In that answer he pleaded the wife's prior marriage to Etsuo as the basis for his denial that he is or has been lawfully married to the wife.

9. It is accepted that, in the event that the nullity petition is rejected, there should be a decree of divorce, although there would need to be some discussion between the parties as to the particulars of behaviour that would be agreed.

10. As a consequence of the issues that arise in this case it has been necessary for the Queen's Proctor to intervene. Her notice of intervention is dated 18th July 2005 and is at A1-30. Mr Turek, a solicitor and officer of the Treasury Solicitor who acts for the Queen's Proctor (p251), has filed six statements dated 10th January 2006 (A1-251), 2nd May 2006 (A6-1069), 8th May 2006 (A6-1137), 23rd May 2006 (A6-1087 – i.e. the fourth report appears before the third report in the bundle), 27th June 2006 (A6-1179) and 14th July 2006 (A6-1189). During the hearing I rejected an application by Mr Tolson QC that he should be permitted to cross examine Mr Turek on the 'decision making process' of the Queen's Proctor.

11. The Queen's Proctor has taken the lead role in instructing the main experts in these proceedings. They have been Mr Hamayotsu, a Japanese attorney at law (whose main report on Japanese law is dated 6th January 2006 and is at A3-714) and Ms Judith Forman, a member of the state bar of California (whose reports I identify later).

12. The issues - The principal issues in these proceedings arise under sections 46 and 51 of the Family Law Act 1986. I will set out the statutory provisions later in this judgment. No advocate at any stage of these proceedings has been able to find any domestic or foreign authority outside Japan that considers the kyogi rikon. I have not been able to find any such authority myself, either.

13. Further, no party has placed before me any authority where recognition of a divorce has been refused in this country under our current law where the divorce is the product not just of the consensual act of both parties (or the act of one of them, such as the bare talaq) but is a divorce that takes effect only upon state registration under procedural and substantive laws laid down in that foreign state.

14. The first issue is whether the kyogi rikon is a divorce obtained by means of proceedings, for the purposes of section 46 (1) of the 1986 Act. If it is (and subject to section 51 of the 1986 Act), it should be recognised since the other provisions of section 46(1) would be fulfilled (the kyogi rikon is effective under Japanese law and Etsuo was domiciled in and a national of that country). The Queen's Proctor and the husband submit that the kyogi rikon is not a divorce obtained by means of proceedings The wife submits that it is.

15. The second issue arises if the kyogi rikon is a 'divorce obtained otherwise than by means of proceedings'. Should it then be recognised under section 46(2) of the 1986 Act? For the purposes of these proceedings, it is accepted that Etsuo was domiciled in Japan at the relevant date (i.e. the date upon which the kyogi rikon was obtained, being 27th February 1985 – section 46(2)b of the 1986 Act).

16. If the wife was domiciled in this country as at that date it is expressly accepted by all parties that this would mean that the kyogi rikon should not be recognised under section 46(2) of the Act (i.e. if it is a non-proceedings divorce). This would be because she would not then be 'domiciled in a country under whose law the divorce, annulment or legal separation is recognised as valid'. To have argued otherwise would have involved circularity.

17. If she was domiciled in California at the time of the kyogi rikon, there was initial disagreement about whether the divorce should be recognised if it fell for consideration under section 46(2). The husband initially said that it should not. The wife thought that it should. The Queen's Proctor said that, subject to any divergence in oral evidence from the report by the expert on Californian law (Judith Forman), the divorce should then be recognised in this country, subject to section 51 of the Act.

18. On Tuesday 1st August 2006 I heard evidence from Ms Forman. She had conducted a vast amount of research often with little notice on highly technical points of law. She was the only expert witness who gave evidence about Californian law (although a Mr Morley has been involved in preparing questions on behalf of the husband in relation to Californian law, he does not come within the description of an expert witness in these proceedings and has not been tendered as such).

19. The video link that was arranged as a means by which Ms Forman was to give evidence failed, typically. In K -v- K [2005] EWHC 1070 (Fam), [2005] 2FLR 1137 Baron J gave guidance about the use of video-links but, as in that case, it was ultimately necessary for the technical evidence of Ms Forman to be given via a 'squawk box' telephone link in a hotel with a faulty cassette player as a recording device.

20. Notwithstanding the difficulties over the arrangements, it was quite plain to me that Ms Forman was a witness of the highest calibre and diligence. Using cricketing analogy, she fielded the points raised on behalf of the husband; when it came to the innings of her own opinions, she hit most of his balls for six. On the first day of the hearing (cf section 4(2) of the Civil Evidence Act 1972 and Rules 33.4 and 35.6 of the Civil Procedure Rules 1998) I was handed a lever arch file which contained 16 different sources of material relating to Californian case law and were a tribute to the diligence of Miss Stone QC and Miss Baker. I was asked to familiarise myself with this material and the questions that arose from it. I did so overnight. Very substantial emails and documentation were exchanged with Ms Forman over the week-end prior to and during this trial.

21. The potential difficulties that arose were overcome, fortunately, by the industry and power of Ms Forman's evidence.

22. In her second report dated 26th June 2006 at A6-1174 and A6-1175 she said: 'Based upon my review of California law and the factual information provided to me by the Queen's Proctor, my opinion remains as stated in my previous report. There is no Californian authority which I have found that addresses the particular question of 'non-judicial divorces' as suggested by Mr Morley. Despite the fact that there is no direct authority for the proposition, the Japanese divorce is recognized in Japan as valid, whether judicial or not, since agreed divorces are extrajudicial proceedings where no court is involved, as explained in part by Mr Hamayotsu…it is my opinion that a Californian court would recognize the non-judicial Japanese divorce as valid in California as previously stated. Non recognition of the procedure of the Japanese divorce is contrary to the idea of comity and counterintuitive'. In her earlier report dated 22nd May 2006 she said at A6-1076: 'It is my opinion that so long as the Japanese divorce …is a valid divorce, then this divorce would be upheld as valid in California'.

23. Essentially she adhered to that opinion and explained her basis for doing so when giving evidence. As a result, on Wednesday morning, I asked whether I was to hear argument from any party that I should depart from her conclusions. I was told that I would not and that the parties accepted that I should proceed on the basis that a Californian court would recognise the kyogi rikon. Any faltering exposition by me of Californian law is therefore rendered unnecessary.

24. I accept Ms Forman's evidence upon Californian law. There is no basis upon which I could do otherwise. Foreign law is a matter of expert evidence that is admitted under section 4(1) of the Civil Evidence Act 1972. I have heard no other evidence on this issue. No party has sought to suggest that I should initiate or receive further enquiries about Californian law or adopt the procedure followed in the case of Abbassi -v- Abbassi [2006] EWCA Civ 355. I ask Mr Turek to send a copy of this judgment to Ms Forman so that she is aware of my recognition of this court's indebtedness to her.

25. Therefore, if the kyogi rikon made on 27th February 1985 was a 'non-proceedings divorce' under section 46 of the Family Law Act 1986 the position would be:

i) if the wife was domiciled in the United Kingdom, that Japanese divorce would not be recognised;

ii) If the wife was domiciled in California, it would be recognised, subject to section 51 (3) of the Act.

26. As to section 51 (under which a court may refuse recognition to a foreign divorce in certain circumstances stated in that section), the wife plainly opposed any such refusal of recognition. The Queen's Proctor reserved her position until the evidence had been heard and, in closing, drew my attention to the relevant legal authorities without urging any specific conclusion on the point. In submissions in opening her case, Miss Stone QC indicated that she would argue that, if the kyogi rikon was recognised under section 46(1) or (2), recognition should be refused under section 51. Section 51 arises only if the kyogi rikon would otherwise be recognised.

27. Therefore the central issues are:

i) Is the kyogi rikon a divorce obtained by means of proceedings? This is essentially a matter that falls to be determined on expert evidence and submission. The expert evidence on this issue has been given on paper as no party wished to cross examine any of the experts whose written evidence appears in the bundle (save that Mr Tolson QC rightly argued that, unless supported by other documentation, no reliance should be placed upon the documents that have been written by Mr Morley, a New York attorney who has acted as a paper advocate for the husband and is entirely wedded to the husband's cause – see e.g. Mr Morley's letter at A5- 893 addressed to the husband and his solicitor by their first names: GREAT NEWS – It is my understanding of English law that an English Court should not recognise the Japanese divorce…).

ii) If this was a divorce obtained otherwise than by means of proceedings, where was the wife domiciled as at 27th February 1985? That is an issue of fact and law;

iii) In the event that the divorce would otherwise be recognised, should recognition be refused under section 51 of the Act? This is also an issue of fact and law.

28. This case has created enormous expense. Due to the complexity of the legal issues and the range of legal submissions that I have received, I have heard evidence covering a period of 24 years. There has been a particular focus in the evidence upon events during two periods – 1982 to the end of 1985 (the wife's marriage to Etsuo and her entry into this country) and from 2004 to date (the period in which the marriage of the parties failed). Since there is a tangle of future litigation at first instance (and inevitable possibilities of appellate litigation) I think that it is incumbent upon me to deal with the full range of issues that arise before me. In doing so I would like to express my gratitude to each of the advocates in the case who have conducted this difficult case with great skill. Although Miss Baker (junior to Miss Stone QC) and Mr Moradifar (junior to Mr Tolson QC) have both played significant roles on behalf of their clients, I will refer hereafter only to Miss Stone QC and Mr Tolson QC for the sake of brevity.

29. Current circumstances - For the purposes of this judgment it is not necessary to go into much detail about the current circumstances of this family. Therefore I give only a bare outline.

30. The husband is aged 55 (having been born on 11th December 1950). The wife is aged 46 (having been born on 15th May 1960). The wife says that the parties separated on 1st January 2005 (C374), although it appears that she did not leave the family home until May 2005 (A1-66). The wife has a child C (aged 16, having been born on 20th July 1990); C's father is Ralph.

31. Mr and the wife have a child, BB (born on 10th May 1996). There are contested issues relating to the future residence of B. I am told that they will be listed before me at a later hearing. However, the present arrangement is that B lives with the wife and has frequent contact with the husband. The relationship between the husband and C has broken down.

32. The family home was bought on 10th September 1982 and remains occupied by the husband. The wife lives in rented accommodation. The husband describes himself as a semi-retired, self-employed business consultant (C251) with net assets of £1.2m (C277). The wife describes herself as an impecunious housewife (C374 and C391). There are issues relating to ancillary relief which will also have to be determined at a later hearing. The breadth and intensity of the current raft of litigation have been damaging.

33. The wife's background – the wife was brought up near San Diego (A6-1097). She joined the United States Air Force when still a teenager (A6-1098). At the age of 20 (i.e. in 1980) she was posted to Japan (A6-1098) where she met Etsuo. On 16th February 1982 she was discharged from the air force. That discharge was under honourable conditions but with the comment that the reason for separation was 'apathy and defective attitude' (A2-301); I mention the nature of the discharge only because it was a matter of insignificant contention. She says that she then worked as a bartender in Japan. She associated with a rock and roll group of which Etsuo was a member and of which another man referred to as 'Kachan' was the leader. Kachan was the wife's real love, she says, but she was unable to marry him because he was still married to someone else. She therefore married Etsuo out of convenience and as a means of remaining in Japan.

34. According to her statements the wife left Japan sometime in the autumn of 1984 (A6-1098). It is accepted that this was probably in November of that year (this appears to be so from the face of the rikon todoke). At A6-1098, she says that she then lived with her mother in La Mesa and worked at a veterinary clinic in Spring Valley, California.

35. She came to this country on 29th January 1985 (A6-1142), some 29 days before the kyogi rikon was made on 27th February 1985. She had been in California for about 2 months. Whilst in California, she says, she met someone called Nicholas. Nicholas is British and was visiting a mutual friend in California; he has worked at Glyndebourne since 1977. The wife says that, between November 1984 and 29th January 1985, she spent two weeks in the company of a collection of people which included Nicholas. She says that she became romantically attached to him and came to this country in January 1985 in order to be with him.

36. This period (i.e. in and about January 1985) is central to the question of where the wife was domiciled at the time of the kyogi rikon and I intend to give a much more detailed account of it later in this judgment. Domicile is an issue that was raised under section 46(2) of the Act.

37. On 3rd July 1985 the wife underwent a ceremony of marriage in Lewes, East Sussex with F;; on the marriage certificate she described herself as a spinster (A2-264). A decree absolute of divorce was made in relation to that marriage on 19th February 1990 (A2-265), the wife having presented a petition for divorce in 1989. The wife says that both before during and after the marriage F was in fact in a same-sex relationship with K; apparently those two men still live together. The husband has suggested that the marriage to F was one of convenience; the wife denies that is so.

38. the wife's next relationship was with C's father which had ended by 1994. There were proceedings under the Children Act 1989 concerning C, which were resolved on 24th May 1994 by orders for contact and parental responsibility in favour of C's father. In early 1995 Mr and the wife met though an advertisement in a newspaper (A2-60).

39. A central issue in these proceedings has been the credibility of the wife. Given the nature of the issues that I have already set out, the issues concerning her credibility were said to relate primarily to how the court should approach the evidence relating to her domicile on 27th February 1985. Her credibility has also been argued under the head of public policy arising by reason of section 51(3) of the 1986 Act. I am left in no doubt at all however that these issues were also raised with a view to the wider spectrum of litigation.

40. For reasons that I will make plain during the course of this judgment I found the wife to be a most unsatisfactory witness. The attack upon her credibility succeeded. That being so, I would not accept anything that she says unless it was corroborated by other material. However, I also accept that her most recent mendacity has to be seen, at least in part, in the context of the conduct of the husband. Mr Tolson QC argued that I should be cautious about making findings relating to the wife's credibility, given that there was material in the associated litigation that was not before me. In fact, he introduced material on this issue from the Children Act proceedings and cross examined the husband upon his credibility. I deal with the case on the evidence that I have heard and read.

41. The book - Much has been made in these proceedings of a 'book' that the wife wrote. A version of it appears in bundle A3. Quite plainly it is semi-autobiographical. Quite plainly, also, it is intended to be humorous and, at times, fantastical. I find it that it is neither helpful, possible nor necessary to try to sift out the autobiographical elements of this book from the fictitious. There has been a tendency to cherry pick the book as a source of support for various theses that have been advanced. I do not join in that exercise which I consider to be speculative.

42. The husband's background – The husband has been married twice before. He regards himself as a highly successful, self-made business man (B145). He has a daughter, P (with whom he does not have contact), by a woman with whom he had a short relationship (A1-110).

43. The husband said as follows in evidence about his knowledge of the wife's previous relationships:

'She told me from the start that she had been married in Japan and I assumed that she had been divorced, although I never made any enquiry about it. I knew that she had been married to F and so I assumed that she had been divorced. I had no reason to suppose that she had not been divorced in Japan. I understood that any previous marriage had been dissolved.'

44. The husband has spared no expense in the conduct of this litigation. He says that his motivation has been the desire to discover the truth about his marriage. That may be part of his motivation but I do not accept that it has been his dominant motivation. I have read the present bundle three times completely (once in March and twice prior to and during this hearing). I heard a directions hearing in the proceedings under the Children Act 1989. Therefore, it has been necessary for me to read the Children Act files (and my attention has been specifically drawn by Mr Tolson QC to the passages at B229 in which the husband's solicitor was seeking to impress upon CAFCASS Legal the relevance of the possibility that the wife might be deported as a result of the allegations that the husband sought to substantiate against her).

45. My reading and experience of him is of a man who is insistent and who has adopted an obsessive attitude to these proceedings. He has 'tapped' telephone calls of the wife and C (he has recordings of about 3,000 such calls), he has installed computer software that has allowed him to examine emails to and from the wife. He has read emails to and from C. He has read correspondence with the wife's solicitors. He said in evidence that he spent about a month preparing a schedule of movements of C (it is at A3-515). He has corresponded directly with at least one expert (A4-20069).

46. On occasion, this obsessiveness has lead him to be untruthful in his evidence (e.g. at A1-63, in which he admitted giving a false account as to whether there was a camera in an office at the former matrimonial home). The untruthfulness of the wife is far more legion and significant than that of the husband; on this issue they are simply in a different league.

47. At times, the husband has been insidious, producing emails and transcripts of private conversations that the wife and C have held with others. He produced a transcript of his telephone call with Nicholas in which he put Nicholas under intense pressure. I also accept that he at least raised with the wife the possibility that his allegations might lead to her deportation, knowing that this would destabilise her (and the children).

48. The wife says that 'when [the husband] is on a rampage he stops at nothing'; I find that there is more than an element of truth about that. I do not accept that his enquiries have been limited to those that were necessary to reveal the truth.

49. The manner in which the husband has produced information has meant that his legal team (and, in particular, Miss Stone QC) has had to exercise a high degree of professionalism in ensuring that they deal correctly with material that has been obtained by the husband other than through the usual channels. From what I observed, the highest degree of professionalism has been demonstrated by his legal team in connection with these difficult issues. I am particularly grateful to Miss Stone QC for keeping this case on the rails and for dealing with matters as she did.

50. The combination of the husband's obsessiveness and the wife's mendacity has caused this case to expand into a multi-faceted piece of litigation, each party's actions inspiring a display from the other of that other's worst qualities. Nullity, ancillary relief and B are all objects of very expensive contest. The more the wife has lied the more intense and intrusive have been the husband's endeavours.

51. The technicality and narrowness of this case. Not only does this case raise very technical points of law. The basis of the nullity petition is itself very narrow. It is accepted that the wife was divorced in Japan; therefore this would not be the classic case of bigamy, even if the divorce from Etsuo is not recognised in this country. If the Japanese divorce is a proceedings divorce it is recognised here. If it is a non proceedings divorce, then if it had been granted 30 days earlier (whilst the wife was living in California), it would have been recognised in this country on the basis of Ms Forman's evidence. Similarly, if the wife had come to this country 30 days later, there would then have been no arguments about domicile and the divorce would again be recognised due to her Californian domicile of origin.

52. Further, the wife did leave Japan having signed a rikon todoke in its prescribed form, thereby consenting to a divorce. She therefore did participate in the divorce process. The height of the allegations against her as expressed on behalf of the husband were that she was reckless about whether the divorce would be effected after her departure by completion of the registration process by Etsuo.

53. The statutory provisions relating to the nullity petition. - Section 11(b) of the Matrimonial Causes Act 1973 provides: 'A marriage celebrated after 31st July 1971 shall be void on the following grounds only, that is to say…(b) that at the time of the marriage either party was already lawfully married…'.

Sections 45, 46 and 51 of the Family Law Act 1986

54. These sections are to be found in Part II of the 1986 Act. They came into force on 4th April 1988 (SI 1988/375). Even though the kyogi rikon was obtained prior to that date, it falls to be considered under the provisions of that Act since section 52 (1) states: 'The provisions of this Part shall apply…(b) to an overseas divorce, annulment or legal separation obtained before that date, as well as to one granted or obtained on or after that date.'

55. Section 45 provides:

(1) Subject to subsection (2) of this section and to sections 51 and 52 of this Act, the validity of a divorce, annulment or legal separation obtained in a country outside the British Islands (in this Part referred to as an overseas divorce, annulment or legal separation) shall be recognised in the United Kingdom if, and only if, it is entitled to recognition—

(a) by virtue of sections 46 to 49 of this Act, or

(b) by virtue of any enactment other than this Part.

(2) Subsection (1) and the following provisions of this Part do not apply to an overseas divorce, annulment or legal separation as regards which provision as to recognition is made by Articles 21 to 27, 41(1) and 42(1) of the Council Regulation.

56. Section 46 provides:

(1) The validity of an overseas divorce, annulment or legal separation obtained by means of proceedings shall be recognised if—

(a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; and

(b) at the relevant date either party to the marriage—

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

(ii) was domiciled in that country; or

(iii) was a national of that country.

(2) The validity of an overseas divorce, annulment or legal separation obtained otherwise than by means of proceedings shall be recognised if—

(a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained;

(b) at the relevant date—

(i) each party to the marriage was domiciled in that country; or

(ii) either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce, annulment or legal separation is recognised as valid; and

(c) neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date.

(3) In this section "the relevant date" means—

(a) in the case of an overseas divorce, annulment or legal separation obtained by means of proceedings, the date of the commencement of the proceedings;

(b) in the case of an overseas divorce, annulment or legal separation obtained otherwise than by means of proceedings, the date on which it was obtained….

(5) For the purpose of this section, a party to a marriage shall be treated as domiciled in a country if he was domiciled in that country either according to the law of that country in family matters or according to the law of the part of the United Kingdom in which the question of recognition arises.

57. By section 54 of the Act 'proceedings' means 'judicial or other proceedings'. The first focus in this case has been upon whether the kyogi rikon falls within the description of 'other proceedings' since it is accepted by each party that it does not fall within the description of 'judicial proceedings'. Analogies with the divorce proceedings under the Matrimonial Causes Act 1973 are therefore inapposite (since our divorce law essentially involves judicial proceedings).

58. Under section 51(3)of the 1986 Act it is provided that:

(3) Subject to section 52 of this Act, recognition by virtue of section 45 of this Act of the validity of an overseas divorce, annulment or legal separation may be refused if—

(a) in the case of a divorce, annulment or legal separation obtained by means of proceedings, it was obtained—

(i) without such steps having been taken for giving notice of the proceedings to a party to the marriage as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken; or

(ii) without a party to the marriage having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as, having regard to those matters, he should reasonably have been given; or

(b) in the case of a divorce, annulment or legal separation obtained otherwise than by means of proceedings—

(i) there is no official document certifying that the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; or

(ii) where either party to the marriage was domiciled in another country at the relevant date, there is no official document certifying that the divorce, annulment or legal separation is recognised as valid under the law of that other country; or

(c) in either case, recognition of the divorce, annulment or legal separation would be manifestly contrary to public policy.

59. It has not been suggested that there is anything in section 52 that affects the outcome of this case (save for the retrospective effect of Part II of the Act, to which I have already referred).

60. Evidence that I have heard – I have produced elsewhere a table showing the evidence of witnesses that I have read or heard. I have not included the reports of the experts or the reports of Mr Turek in that table, although I have of course read them; nor have I mentioned the evidence of Ms Forman in that table. I have also heard the skilful arguments of each of the counsel concerned.

61. The Japanese documentation – Very helpfully Miss Stone QC took me through the main Japanese documents when opening the case. They are:

i) The affidavit of the wife declaring that she was competent to marry. It is at A2-469 and includes the following passage: 'I the above named [name] being duly sworn, do declare that according to the laws of my State I am of legal marriageable age, that I have not been married before, and that there is no hindrance, legal or otherwise, to my uniting in marriage this day in Naha, Okinawa with, Etsuo, a Japanese national'. It is in English and was sworn by the wife at the Consulate of the United States of America on 20th October 1982;

ii) The application of registration of the marriage to Etsuo. The Japanese version of this document is at A5-978 and the translation is at A5-975. In evidence the wife said that the document at A5-976 does not relate to the marriage certificate at A5-978. She said that she had not the first clue who the witnesses named on the certificate might be; she made this point at the hearing notwithstanding that that the documents had been in her possession for some time. Miss Stone drew my attention to the amendments on that document; however I am unable to attach any significance to them;

iii) The application for the registration of the kyogi rikon. This is the 'rikon todoke'. It appears frequently in the bundle. I will refer to the Japanese version of the document at A2-466 and the English translation at A2-463. It is a document that requires careful scrutiny and I need to return to it later. It states on its face that it was filed on 'February 27 1985', the day the divorce was in fact made;

iv) At A2-261 there is a document with a floral trim which is the certificate of acceptance of the divorce. It is translated at A2-262. That document is dated 17th February 2005 (i.e. some 20 years after the registration of the divorce). It states: 'I hereby certify that the above registration was accepted on 27th February 1985 and therefore it has legally come into effect';

v) At A2-259 there is the register of Etsuo's family ('the koseki'), recording the marriage to the wife. At A2-260 there is the recording of the divorce between the wife and Etsuo in that register.

62. The expert evidence about the kyogi rikon - The Queen's Proctor commissioned a report, dated 6th January 2006 from a Mr Hamayotsu who is an attorney in Tokyo. His report is at A3-714.

63. Mr Hamayotsu describes this divorce in this way at A3-715 and 716:

a) 'The divorce by consent (kyogi rikon), provided for in the civil code of Japan (Book IV, Law No. 9 of 1989, as amended; Art 763), had been for decades prior to the 'effective date' [i.e. 27th February 1985, the date upon which it is said that this divorce was obtained between the wife and Etsuo] was, as of the effective date, and has been since then to date, a valid form of divorce under the laws of Japan, and was a form of divorce which could be lawfully chosen by… Etsuo…, a Japanese national and[the wife], a citizen of the United States of America, as of the effective date' [A3-715, para 6];

b) 'In order to make the divorce by consent (kyogi rikon) effective, it was required that the registration (todokede) be made by the filing and acceptance (juri) by the governmental official of the prescribed form of registration for divorce, in which certain matters, such as names of the parties, the fact that it was a divorce by consent, the nationality of the spouse if the spouse was a foreign national, the date of commencement of cohabitation, the date of separation, the name of the head of the household and so forth, were entered …The law provides that both parties and two witnesses had to sign this form for registration of the divorce (Civil code 739, para 2, Art. 764) and that the registration should not be accepted unless it was confirmed that the registration complied with the provisions requiring such signatures by the parties and the witnesses but that if the registration of the divorce was accepted (juri) in contravention of the provisions requiring the signing of the registration form by the parties and the witnesses, this would not affect the effect of the divorce (civil code, Art 765, para 2). As stated herein below…it is the ruling of the Supreme Court of Japan that so long as the divorce by consent was based on the party's intent, writing the name and affixing his or her seal impression can be done by another person on her or his behalf…Moreover it is not an absolute requirement that the parties themselves attend the government office physically. Registration by mailing the completed form for registration of divorce by consent (kyogi rikon todoke) was also legally possible' (A3-716);

c) 'In recent years in most municipalities the government officials would request the parties appearing before the governmental official to file the registration form of divorce to present the passport or driver's licence but this is of recent years and the practice is not uniform….If the form or registration had been completed and upon examination of the completed form which had been filed did not indicate that the form had been forged, the registration form would be accepted (juri). At that time the registration of the divorce by consent (kyogi rikon todoke) was accepted, the divorce would become effective, and thereafter the fact of the divorce would be entered in the family register maintained for the Japanese national concerned at the government office where the registration was filed or, if the family register concerned was maintained at another government office, the registration filed and accepted would be forwarded to that other government office where the fact of the divorce would be entered in the family register...In recent years, in case both parties…do not physically attend the government office for filing the divorce registration, the government officials in many municipalities would send by mail to the party or parties who had physically attended a written notification of the fact of the divorce registration…'.

64. At A3-717 Mr Hamayotsu further describes the method by which such a divorce would be obtained:

' 13. The divorce by consent (kyogi rikon) would be made primarily as follows:

a) The parties (spouses) discuss the possibility of a divorce. If they agree or mutually consent, they fill in the form of registration of divorce by consent (kyogi rikon todokedesho). The form is available from the government office. Either party may fill in the matters to be entered and then each party gives his or her signature (and in case of a Japanese national who has a seal chop) affixes his or her seal impression. If a party is unable to give his or her signature, he or she may have the other party or any other party fill in his or her name and affix his or her seal impression. In case where the party is unable to give his or her signature and does not have a seal chop, his or her name may be filled in by someone else and he or she can affix his or her finger print. It is the ruling of the supreme court that so long as it is based upon a party's intent, writing the party's name and affixing his or her seal impression can be done by another person on her or his behalf….In the case of a non-Japanese who does not use the seal, the signature without the seal impression suffices.

b) The parties would request two persons of legal age to sign and affix their seal impressions to the registration form as witnesses (shonin);

c) The completed form for registration of divorce by consent (kyogi rikon todoke) would be filed with the government office by both parties or by one of the parties or mailed to the government office or filed by another person who has been requested by the parties or party with the filing of the registration form.

d) When the registration form is received by the government office, the official or officials examine the form to see if the entries are properly made and the signatures and seal impressions of the parties and their witnesses have been properly affixed and if the form is in order, the form is accepted (juri) and the proper entry is made in the family register. The party or parties may request a certification of the acceptance of the registration from the government office.

14. While the matters concerning the family register including the acceptance and entry in the family register of the divorce are under authority of the chief of municipality…..and in the procedure of the examination, acceptance or rejection of the registration of divorce by consent the governmental officials are involved in reviewing, judging and ascertaining whether the registration form complies with the requirements for entry of matters and signing and affixing of seal impressions and like matters, and the Minister of Justice of the national government and chiefs of the legal affairs bureaus of the ministry have the authority to issue directives and ordinances and require reporting from municipalities, give advice and recommendations to chiefs of municipalities….But the decision as to whether the registration for divorce by consent filed by the parties should be accepted or rejected is in the authority of the chief of the municipalities and the officials who handle the matters of acceptance of the registration of divorce by consent (kyogi rikon) and entry in the family registers on behalf of the chiefs of the municipalities. In the procedure through which the parties agree or mutually consent to the divorce, or file the registration form, or the governmental official accept or reject the registration of the divorce by consent (kyogi rikon), the judicial court…or other tribunal or other like authority is not involved. The involvement by such a tribunal only occurs if and when the parities (spouses) or either of them or other parties requires nullification of the divorce by consent (kyogi rikon), which would need the judicial review and adjudication on the question of the nullity of the divorce by consent'.

65. At page 1188 Mr Hamayotsu says further:

'In case where the registration of a kyogi rikon by filing a divorce registration form is rejected by the official, and either or both of the parties to the divorce wish to contest such rejection of the registration application, the party or parties may file complaint with the family court…in which case the family court examines the complaint and makes decision…The party or parties may appeal from the decision of the family court to the High Court (appellate court)…If the court adjudication is in favour of the complainants, the divorce is registered on the basis of the court adjudication. This procedure was available under law in 1985 and is still available today and nothing has changed'.

66. Other evidence has been filed on the nature and procedure of the kyogi rikon. In a report, dated 8th July 2005, obtained by the wife from Mr Sugawara,(A2-283) he says:

'It is important to emphasise that the validity of the Rikon Todoke depends on the intention of the parties. There is no deadline as to when the Rikon Todoke must be registered after it is signed. If the parties intended to get divorced when the Rikon Todoke was submitted then the divorce is valid regardless of whether it was signed by the parties a long time ago…it would have been possible to register the kyogi rikon in the Koseki or at the government office without it having been properly signed by [the wife] and Etsuo and their witnesses at the city office in front of a government official'…virtually the only requirement for a valid kyogi rikon divorce is the husband's and wife's intention and agreement to get divorced…it is important to point out that, in certain cases, a spouse's name can be signed by another….While the Rikon Todoke should bear the names of two people 'acting as witnesses', these witnesses are not required to witness the husband and wife sign[ing] the Rikon Todoke. As a matter of fact, their only responsibility is to sign the Rikon Todoke. …it is not necessary to file the rikon todoke with the registration office of the ward in which the spouses' family register is maintained…The rikon todoke may be filed with a government office at either location…It is not an absolute requirement that the wife sign the Rikon Todoke herself'.

67. Insofar as there is any conflict between Mr Sugarawa and Mr Hamayotsu I accept the evidence of Mr Hamayotsu as the lead expert in the case who has been fully instructed. I do not accept that 'the validity of the Rikon Todoke depends on the intention of the parties' only.

68. There is an affidavit from Ms Hayashi at A2-432; she is a Japanese attorney who was instructed by the husband; I would therefore approach with caution any controversial parts of her evidence. However, uncontroversial (save as to the use of the adjective 'ministerial' is the following extract from her report which states: 'A kyogi rikon divorce is entirely non-judicial. The basic requirement for it are that each spouse should genuinely sign a form known as the rikon todoke; that the rikon todoke should bear the names of two people acting as witnesses; and that the form should be filed with the registration office of the ward in which the spouses' (or the Japanese spouse's) family register is maintained. The registration offices perform nothing more than a purely ministerial recording function. They have no responsibility in connection with the divorce process. They provide no counselling, do not handle or require any mediation and they exercise no discretion to refuse to file a form that appears to be correctly completed'.

69. Burden and standard of proof - On behalf of the husband it is accepted that the burden falls upon him to prove:

a) the celebration of the first marriage ( a fact not in dispute);

b) the validity of the first marriage (a fact not in dispute);

c) the subsistence of the first marriage at the date of the ceremony of marriage to the husband (disputed);

d) the celebration of that latter marriage (not in dispute).

70. On his behalf it was submitted by Stephen Cobb QC (who appeared on behalf of the husband in March) that the standard of proof is the normal civil standard as expressed by the House of Lords in Re H and another (minors) (sexual abuse) [1996] AC 563, [1996] 1 All ER 1. That standard means that facts are proven on the balance of probabilities. There has not been any argument in relation to this during the August 2006 hearing and I accept that the submission that Mr Cobb QC advanced remains correct – see Wicken -v- Wicken [1999] Fam 224, [1999] 2 WLR 1166, [1999] 1 FLR 293, [1999] 1FCR 109 FD at p 228.

The order in which sections 46(1) and (2) should be decided.

71. It seems to me that it is essentially logical to consider section 46(1) first. Only then need section 46(2) be considered. If the kyogi rikon would otherwise be recognised it would then be necessary to consider Section 51.

Section 46 (1) of the 1986 Act (divorce obtained by means of proceedings) – case law

72. This subsection replaced provisions that were previously to be found in sections 2 and 3 of the Recognition of Divorces and Legal Separations Act 1971 on 4th April 1988 (see SI 1988/375, art 2). The phrase 'judicial or other proceedings' that now arises in section 54 of the 1986 Act also arose in section 2(a) of the 1971 Act. There has been a body of case law under the 1971 Act that has considered that phrase.

73. Before turning to that body of case law I would wish to adopt with gratitude the following passage from the judgment of Hughes J (as he then was) in El Fadl -v- El Fadl [2000] 1 FCR 685, [2000] 1 FLR 175:

'The Family Law Act 1986 distinguishes between overseas divorces 'obtained by means of proceedings' and those 'obtained otherwise than by means of proceedings'. The origin of that distinction lies in the additional bases for recognition which were added by the 1971 Act, for those had been couched in terms of references to 'proceedings'. By that Act where there were 'proceedings' the basis for recognition was extended from validity according to the law of the country in which the parties were domiciled, to cases where either spouse was habitually resident in, or was a national of the country where the divorce was obtained. For the purposes of the Family Law Act 1986 'proceedings' are defined by s 54 as 'judicial or other proceedings'. That preserves the law on that point created by the 1971 Act.

What I shall call for brevity 'proceedings divorces' in which term I, of course, include annulments and legal separations, are dealt with by s 46(1). Such divorces if obtained outside the British Isles, and provided they are valid in the country where obtained, qualify for recognition here if at the time the proceedings were commenced either party to the marriage: (i) was habitually resident in that country or, (ii) was domiciled in it or, (iii) was a national of it.

If such a proceedings divorce qualifies under s 46(1) it is necessary then to travel to s 51, which provides grounds upon which recognition may be refused. I leave aside in this case refusal upon grounds that the divorce is irreconcilable with a valid court decision upon the subsistence of the marriage (s 51(1)), or that in English law there was no subsisting marriage (s 51(2)). Those do not arise here.

That leaves s 51(3), the material parts of which provide that a proceedings divorce may be refused recognition upon three grounds:

'If it was obtained: (i) without such steps having been taken for giving notice of the proceedings to a party to the marriage as having regard to the nature of the proceedings and all the circumstances should reasonably have been taken; or (ii) without a party to the marriage having been given for any reason other than lack of notice such opportunity to take part in the proceedings as having regard to those matters he should reasonably have been given, or ... Where recognition of the divorce would be manifestly contrary to public policy.'

What I shall call 'non-proceedings divorces' have different rules which are to be found in s 46(2). Provided again that such a divorce is valid in the country where it was obtained it qualifies for recognition only if at the date on which it was obtained either both parties were domiciled in that country, or one was and the law of the other's domicile would accept the divorce as valid. Unlike a proceedings divorce neither habitual residence in nor nationality of the country of divorce is enough. There is a further requirement that neither party has been habitually resident in the United Kingdom for the preceding year.

Once again if the divorce qualifies under s 46(2) one turns to s 51 for grounds upon which recognition may nevertheless be refused. Passing over once again ss 51(1) and (2) which apply equally to non-proceedings divorces, one then encounters a further distinction between proceedings and non-proceedings divorces. The grounds upon which recognition may be refused on the basis of inadequate notice or inadequate opportunity to participate do not apply to non-proceedings divorces. The only grounds on which recognition may be refused are: (1) there is no official document certifying that the divorce, annulment, or legal separation is effective under the law of the country in which it was obtained; or (2) where either party to the marriage was domiciled in another country at the relevant date there is no official document certifying that the divorce etcetera is recognised as valid under the law of that other country; or, lastly, that recognition of the divorce etcetera would be manifestly contrary to public policy.

In other words, non-proceedings divorces do not give rise to any consideration of notice or participation, but they are to be recognised only on the basis of validity by the law of both parties' domicile and where local effectiveness is officially certified.

There clearly have been difficulties in distinguishing between proceedings and non-proceedings divorces. To some extent those difficulties reflect the difficulty of the word 'proceedings'. To some extent also, no doubt, they reflect the inevitable tension between, on the one hand, the desirability of avoiding limping marriages, and, on the other hand, the undesirability of exposing spouses to changes in their status by means of unfamiliar and perhaps informal processes, especially ones of which they are unaware, or where they are unable to express their views. The statute itself makes clear at least two things. First, proceedings are not limited to judicial proceedings, but include 'other proceedings'. Second, there exists a category of divorce which does not involve proceedings for the purposes of the Family Law Act. Therefore, it is not every form of activity by which legal divorce is achieved which can qualify as proceedings'.

74. Quazi - The House of Lords considered the phrase 'judicial or other proceedings' in Quazi -v- Quazi, [1980] AC 744, [1979] 3 WLR 833, [1979] 3 All ER 897. I refer to the following passages from speeches in that case (by reference to the report at [1980] AC 744:

a) Lord Diplock said at p808H when describing the Talaq divorce that had been obtained in Pakistan in that case: 'The pronouncement of the talaq was required by law to be notified to a public authority, the chairman of the union council; he in turn was required by law to constitute an arbitration council for the purposes of conciliation and to invite each spouse to nominate a representative. These are 'proceedings'; none the less so because in the event neither spouse elects to take advantage of the opportunity for conciliation which the arbitration council presents. They are proceedings that are not merely officially recognised but are also enforced by penal sanctions under the Muslim Family Laws Ordinance 1961. Without such proceedings the divorce by talaq never becomes effective';

b) Lord Salmon said at p811G: 'I do not think that there can be any cogent reason for construing the words 'other proceedings' as ejusdem generis with 'judicial proceedings' and therefore meaning 'quasi judicial proceedings'. On the contrary, the words 'other proceedings' cover a very wide field in their context and can only mean 'any proceedings other than judicial proceedings';

c) In looking at the specific meaning of the words 'other proceedings' Lord Fraser said at p 814D: 'Coming to the Act itself the words 'other proceedings' in s2(a) must mean proceedings that are not judicial, otherwise they would add nothing to what has gone before, and I see no indication in the section that they are to be limited to quasi-judicial proceedings'.

d) Lord Scarman (with whom Viscount Dilhorne expressly agreed) said at 823 D-824C : 'Nor, for the same reasons, is it possible to restrict the meaning of those words, as the Court of Appeal did, to proceedings in which 'the state or some official organisation recognised by the state must play some part in the divorce process at least to the extent that, in proper cases, it can prevent the wishes of the parties or one of them, as the case may be, from dissolving the marriage tie as of right'. No hint of any such restriction appears in the convention or the Act; nor is any such restriction to be implied, if not expressly stated, in a convention or statute the purpose of which is to facilitate the recognition of divorces and legal separations…For these reasons I construe s 2 as applying to any divorce which has been obtained by means of any proceeding, ie any act or acts, officially recognised as leading to divorce in the country where the divorce was obtained, and which itself is recognised by the law of the country as an effective divorce. Specifically, 'other proceedings' will include an act or sequence of acts other than a proceeding instituted in a court of law….'

75. Mr Tolson QC made detailed submissions about the case of Quazi. He emphasised that it was the only decision of the House of Lords that dealt with the interpretation of 'judicial or other proceedings'. I accept that it is the only decision at that level on the meaning of those words. However, just as in other areas of law (e.g. in ancillary relief proceedings where White -v- White [2001] 1 AC 596 HL has been interpreted in subsequent authorities of the Court of Appeal and Family Division), Quazi has been interpreted in subsequent cases and, in particular, in the case of Chaudhary [1984] 3 All ER 1016.

76. Mr Tolson QC referred to the following specific passages in the speeches of their Lordships:

i) Passages at p808 D - 808 F (Lord Diplock), p814D – 814 G and p822F – 823A (Lord Scarman) in which their Lordships refer to the Hague Convention of 1970 when interpreting the Act. For instance Lord Fraser says in the above passage: '…the only limitation on the nature of other proceedings to which the Convention and the Act are intended to apply is that they shall be legally effective in the country where they are taken'. In my judgment these passages do not assist in defining the phrase 'other proceedings'; they simply remind courts that the words 'judicial or other proceedings' are words of limitation that, under the Convention and the Act, must be applied;

ii) The passage from the speech of Lord Scarman that I have already set out (p824B) in which he refers to 'any proceeding, i.e. any act or acts officially recognised as leading to divorce in the country where the divorce was obtained'. Those words are considered in later authority (particularly Chaudhary). In the context of section 46 of the 1986 Act plainly the word 'proceedings' cannot mean that any officially recognised act since that definition would render section 46(2) redundant (since the very act of obtaining a divorce would then be a proceeding);

iii) The passage at p814D in which Lord Scarman said 'under Thai law, the khula had to be in writing and witnessed by two persons. This khula was. It therefore complied with section 1498 of the Civil Code. If this was all, it would be clear…that the khula was obtained by means of an officially recognised proceeding (i.e. the signing and witnessing of the instrument) and was effective under Thai law'. Mr Tolson referred me to p763C where Wood J described the manner in which a khula was obtained. The point that Mr Tolson made was, if a khula is a proceeding how can it be said that a kyogi rikon is not? Given what is said about divorces based only on consent in Chaudhary and the differences between the khula (under which registration is not strictly necessary – see p764G) and the kyogi rikon, I do not find this of assistance.

77. Further, on the last of those three points Miss Stone QC responded that the House expressly excluded from argument any consideration of the issue of whether the khula was a proceeding (see p801H and 803C).

78. As to the passage from p824B ('any act or acts officially recognised…'), I was referred by Miss Stone QC to the following passage in Dicey and Morris (13th Ed, including 4th supplement, 2004) at paragraph 18-092:

'The Law Commission, following Lord Scarman's approach, recommended that 'judicial or other proceedings' should include acts which constitute the means by which a divorce may be obtained in a country and which are done in compliance with the law of that country but this recommendation was not implemented in the Family Law Act 1986 nor was the same approach taken in later cases. The Court of Appeal in Chaudhary -v- Chaudhary [1985] Fam 19 CA interpreted the speeches in Quazi -v- Quazi as requiring the phrase 'judicial or other proceedings' to be read as indicating a narrower category of divorces than all divorces obtained by any means whatever which are effective by the law of the country in which the divorce is obtained. This interpretation is based on the dubious ground that the House of Lords, while differing from the Court of Appeal, did not expressly dissent from a passage to that effect in the judgment of Ormrod LJ. It was therefore possible to hold in Chaudhary -v- Chaudhary that a 'bare' talaq, requiring nothing more than the making of a declaration by the husband, was not within the phrase 'other proceedings' in section 2. Other forms of divorce by private agreements of the parties would seem to be in the same position (e.g. Thai divorces of this type, as in Ratanachai -v- Ratanachai, The Times June 4, 1960 and Varanand -v- Varanand [1964] 108 SJ 693…'

The Family Law Act 1986 contains no direct guidance on the meaning of the phrase 'judicial or other proceedings'. Implicitly, however, it rejects the more liberal approach of Lords Fraser and Scarman, for effectiveness under the law of the country in which the divorce was obtained is a pre-requisite to the recognition of any divorce whether or not obtained by means of proceedings, and cannot be a criterion for distinction between the two categories'.

79. In my judgment the above passage answers Mr Tolson's point about the khula divorce (as is further demonstrated by Chaudhary itself). However it does not detract from the importance of the passage from Lord Scarman's speech in which he said that a state's power of veto is not a pre-requisite of 'proceedings'; Oliver LJ repeats that point in the case of Chaudhary, to which I now turn.

80. I agree with Miss Stone QC and Miss Wheeler that the phrase 'judicial or other proceedings' and the decision of the House of Lords in Quazi has to be considered in the light of the detailed analysis given to it by the Court of Appeal in Chaudhary -v- Chaudhary [1985] Fam 19, [1984] 3 All ER 1017.

81. In Chaudhary Cumming-Bruce LJ said at p1028 of the All England Report:

'The conclusion that follows from the above is that the criterion 'judicial or other proceedings' must be given a construction which restricts recognition to a narrower category of divorces than all divorces obtained by any means whatsoever which are effective by the law of the country in which the divorce was obtained.

There is nothing to be found in the speeches in the House of Lords which is inconsistent with this conclusion. On the contrary, all their Lordships focussed their analysis on the question whether the procedure required by the Pakistan Ordinance of 1961 impressed the characteristic of 'proceedings' on the means by which the divorce in that case was obtained. If a bare talaq had been enough, the ratio decidendi of all the speeches was quite unnecessary. The answer may be that the House confined itself to the legal effect of the facts in the case before it. Talaq followed by compliance with the requirements was enough to constitute 'other proceedings', so that it was unnecessary to look for a wider criterion by considering the effect of a bare talaq. There is force in the point, and it gains strength from the express words of Lord Fraser. None the less, if divorce obtained by any means effective by the law of the country where it was obtained was sufficient, the reasoning in all the speeches was quite unnecessary. And I do not understand the dictum of Lord Scarman in Quazi -v- Quazi [1979] 3 All ER 897 at 916, [1980] AC 744 at 824 which led Bush J in Zaal -v- Zaal (1983) 4 FLR 284 at 288 to a contrary view, as an expression of the view that any act or acts legally effective in the country where the divorce was obtained constitute proceedings. Lord Scarman was considering the acts done by way of compliance with the 1961 Pakistan ordinance'.

82. Oliver LJ said as follows in that case at p1030:

'The decision of the House of Lords in Quazi -v- Quazi [1979] 3 All ER 897, [1980] AC 744 rules out any notion that the 'proceedings' referred to in the section require to be of a quasi-judicial nature or of a nature in which any official organisation recognised by the state has some right of veto on, or control over, the operation of the wishes of the parties or of one of them. That had been suggested in the judgment of the Court of Appeal in that case delivered by Ormrod LJ (see [1979] 3 All ER 424, [1980] AC 744), but it was clearly rejected by their Lordships.

What I do not find rejected, however, in the speeches of their Lordships is the basic analysis by Ormrod LJ of the section. He pointed out that it requires two conditions to be satisfied. The first is that the divorce or separation shall have been obtained by means of 'judicial or other proceedings', the second that the divorce so obtained is effective under the law of the country where it is obtained. These, as he pointed out, are separate conditions. If it had been the intention of the legislature to recognise every divorce obtained abroad, however obtained, it would have been unnecessary to have any reference at all to 'judicial or other proceedings' and para (a) could have been omitted altogether.

The starting point, therefore, as it seems to me, and I do not find anything in their Lordships' reasoning to suggest otherwise, is that the phrase 'judicial or other proceedings' is restrictive. It is not every divorce or legal separation recognised as effective by the foreign law which is to be accorded recognition here, but only one which has resulted from 'judicial or other proceedings' in the country in which the divorce or separation is obtained.

Now, of course, it has to be recognised that in its dictionary definition 'proceeding' is a word of wide import, capable at its widest of embracing simply the doing of an act. But if it is so to be construed in the 1971 Act, it becomes merely tautologous, for the obtaining of a divorce or separation is in itself the doing of an act and one is back in the same dilemma as that envisaged in Ormrod LJ's judgment that para (a) of the section has then no sensible field of operation.

'Proceedings' must, in my judgment, at least bear in the statute a meaning which the word would have in normal speech where, as it seems to me, no one would ordinarily refer to a private act conducted entirely by parties inter se or by one party alone, as a proceeding, even though the party performing it may give it an additional solemnity or even an efficacy by performing it in the presence of other persons whose only involvement is that they witness its performance. The word would not, in my judgment, ordinarily be used as being synonymous with 'procedure' or 'ritual'. Thus, for instance, the formalities which are required by law to be observed in the execution by a testator of a valid will under the provisions of the Wills Act 1837 would not, I should have thought, be normally referred to as 'proceedings' although the testator would be properly described as having gone through the correct procedure. On the other hand, the word does not, I think, necessarily connote publicity; for instance, business transacted at a meeting of a board of directors of a company is universally and properly described as 'proceedings of the directors'.

In the context, however, of a solemn change of status, it does seem to me that the word must import a degree of formality and at least the involvement of some agency, whether lay or religious, of or recognised by the state having a function that is more than simply probative, although Quazi -v- Quazi clearly shows that it need have no power of veto.'

83. The phrase 'simply probative' has troubled me throughout this case and I have sought help with its meaning. I think that it must mean that the function of the state or agency must be more than just a source of proof of the divorce. However, I have reminded myself that those two words must not be treated as if they were words of a statute. I have to look at the overall meaning of the case of Chaudhary.

84. To that end I found the following passage from Balcombe J (as he then was) particularly helpful:

"Proceedings" requires some form of state machinery to be involved in the divorce process: not necessarily machinery established by the state, since existing religious machinery recognised by the state is sufficient . . . the act or acts of one or both of the parties to the marriage, without more, cannot amount to proceedings; there must be the intervention of some other body or person with a specific function to fulfill, such as the union council in the case of the talaq considered in Quazi v. Quazi.' (See [1985] Fam 19 at 46, [1984] 3 All ER 1017 at 1034.).

85. In Japan, the state intervention is in the form of requiring the registration of a divorce by consent in accordance with formalities (albeit limited) prescribed by law. There is no discretionary power of veto but the formalities are essential to the divorce. Only after the state machinery has been employed is the divorce effected.

86. Plainly, the kyogi rikon is not like the bare talaq where the divorce is the pronouncement before witnesses and 'that alone'. At p1031 e to g Oliver LJ said as follows, concerning the bare talaq:

'But what brings about the divorce is the pronouncement before witnesses and that alone. Thus in its essential elements it lacks any formality other than ritual performance; it lacks any necessary element of publicity; it lacks the invocation of the assistance or involvement of any organ of, or recognised by, the state in any capacity at all, even if merely that of registering or recording what has been done. Thus, though the public consequences are very different, the essential procedure differs very little from any other private act such as the execution of a will and is akin to the purely consensual type of divorce recognised in some states of the Far East (see eg Ratanachai -v- Ratanachai (1960) Times, 4 June, Varanand -v- Varanand (1964) 108 SJ 693 and Lee -v- Lau [1964] 2 All ER 248, [1967] P 14).

In my judgment, and looking at the 1971 Act alone, such an act cannot properly be described as a 'proceeding' in any ordinary sense of the word, still less a 'proceeding' in what must, for the reasons given above, be the restrictive sense of the word as used in the Act.'

87. Recognising the Lebanese divorce in the case of El Fadl (ibid), Hughes J said:

'Although the Sharia court has no judicial decision to make whether there is to be divorce or no, what occurred before it with the assembly of the court, judge and clerk, and the duty to record into the register, having taken formal declarations, is properly described as 'proceedings' and the local law explicitly requires such proceedings as an integral part of the divorce process. Since both spouses were at the material time domiciled in, and, indeed, nationals of the Lebanon, it follows that this proceedings divorce qualifies for recognition under s 46(1)'.

Submissions on 'proceedings divorce'

88. The Queen's Proctor submits:

'In his report dated 9 January 2006, Mr Hamayotsu sets out the process involved in the kyogi rikon, translated as "divorce by consent". So, what are the essential elements of the process? Do they amount to "proceedings"?

According to paragraph 9 of the report, the essential elements appear to be:

i) completion by the parties of a prescribed registration form giving information which includes the names of the parties; that it is a divorce by consent; the nationality of a foreign spouse; date of commencement of cohabitation; date of separation; name of the head of the household, etc;

ii) a signature on the form of both parties and two witnesses;

iii) the form be filed at a government office (not specified in the report);

iv) acceptance (juri) of the form by a government official.

On completion of these steps, the registration is complete and the divorce effective. The process does not therefore appear to require:

a) the physical presence of either party at the government office – the process can be completed by post; or

b) the parties' own signatures – they can be certified by another person.

'A divorce [i.e. by way of kyogi rikon] can be nullified if it is later shown that the requisite consent was not present (paragraph 11). However, the process itself involves no investigation as to whether consent was genuinely given, the identity of the parties, or the accuracy of the information filed. An irregularity or lack of signature by the parties or witnesses appears – on the evidence of Mr Hamayotsu – not to affect the validity of the divorce.

It is the view of the Queen's Proctor that this process lacks the essential elements of "proceedings". In El Fadl, a Sharia court was convened, and heard oral declarations from a party and witnesses. In Quazi, the chairman of the union council was required to convene an arbitration council to conciliate. In each case, an official body played an active role in the process which went beyond the "merely probative" recording of a prior event. By contrast, it is submitted, the kyogi rikon is a bare administrative process which records – with next to no scrutiny – the private and prior act of the parties. However cursory the judicial involvement in a special procedure divorce, such a divorce is still the act of the court, and not the mere recording of the parties' act; and it is within the power, sometimes exercised, of the District Judge considering a petition under the special procedure to call for more evidence, remove the cause from the special procedure list, or even refer the matter to the Queen's Proctor.

89. In her closing submissions on behalf of the Queen's Proctor Miss Wheeler submitted:

'The consistent position on behalf of the Queen's Proctor has been that the kyogi rikon is a non-proceedings divorce. This is because the "essential elements" of the process which "result in the marriage being dissolved", (to adopt the phrase of Oliver LJ in Chaudhary), do not appear to constitute "proceedings." See Skeleton paragraphs 26 - 30.

Whilst it is clear that the process involves the intervention of a state body – which was fatally lacking in Chaudhary – it is submitted that where, as in this case, this intervention is limited to recording the consent of the parties this does not convert a procedure into proceedings.'

90. On behalf of the husband it is submitted that:

'It therefore seems plain beyond peradventure that the "essential elements" of the kyogi rikon are a. intention and b. agreement. The rest, in the words of Oliver LJ, is "mere surplusage". As in the Far East cases referred to by Oliver LJ in Chaudhary, akin to a bare talaq, the mere filing of the kyogi rikon at the government office does not elevate this "purely consensual type of divorce" from a non-proceedings divorce into a proceedings one.'

On behalf of the wife the following introductory submissions were made by Mr Tolson QC:

i) there is no obvious reason founded on principle or comity why England and Wales should not recognize a Kyogi Rikon divorce (paragraph 11 of the submissions of Mr Tolson QC);

ii) 'on any linguistic or purposive construction of the Convention [i.e. The Hague Convention on the Recognition of Divorces and Legal Separations 1970] the kyogi Rikon ought to be recognised internationally' (paragraph 12 of the submissions of Mr Tolson QC);

iii) a statute should be interpreted in the light of current social conditions" and that "divorce has become more common since 1970 and without social stigma' (paragraph 28 of the submissions of Mr Tolson QC).

91. The Queen's Proctor responds to these submissions as follows:

'W argues that the Hague Convention assists in the construction of s.46 of the FLA and further that "on any linguistic or purposive construction of the Convention the Kyogi Rikon ought to be recognised internationally". However, effect was given to the Hague Convention by the RDLSA, not by the FLA; This is clear from the preamble to the RDLSA which refers to the convention and continues "whereas with a view to ratification by the UK of that Convention, and for other purposes it be expedient to amend the law relating to the recognition of divorces and legal separation. The Long Title of the FLA merely describes it as "An Act to…amend the law relating to the recognition of divorces, annulments and legal separations…".

Between the enactment of the RDLSA and the FLA, the Domicile and Matrimonial Proceedings Act 1973 made further changes to the law on recognition. This followed the abolition of the doctrine of the wife's dependent domicile. It was also designed to mitigate the decision in Qureshi [1972] Fam 173 by restricting the recognition of non-judicial divorces where either party had been habitually resident in the UK for a year.

Before further legislation was enacted, the Law Commission reviewed the law and recommended a complete revision. The FLA therefore created a new code. This aimed at a wider "mischief" than the "limping marriage" which the Convention had been designed to cure. By 1986, as Hughes J identified in El Fadl, there was a dual purpose which created an "inevitable tension" within the scheme of the Act "between, on the one hand, the desirability of avoiding limping marriages and, on the other hand, the undesirability of exposing spouses to changes in their status by means of unfamiliar and perhaps informal processes, especially ones of which they are unaware, or where they are unable to express their views" (p.186G-H).

On this basis it is submitted that the Convention does not assist in the interpretation of the Statute.

W asserts that "a statute should be interpreted in the light of current social conditions" (paragraph 28) and that "divorce has become more common since 1970 and without social stigma". This submission is flawed in that it wrongly assumes the purpose of the FLA to be to liberalise the recognition of overseas divorces. It also fails to appreciate that between 1970 and 1986 social changes included increased travel and immigration to this country and growing recognition of the rights of women.

Finally, this court is not concerned to promote the international recognition of the kyogi rikon. Its function is to apply the provisions enacted by the legislature to determine whether, in this case, in this jurisdiction, the kyogi rikon is to be recognised as dissolving the marriage of the Wife and Etsuo .

"Principle" and comity

W's skeleton asserts at paragraph 11 that "there is no obvious reason founded on principle or comity why England and Wales should not recognize a Kyogi Rikon divorce" (para 11). With respect, this submission appears misconceived. First, as Dicey and Morris set out,18 "In the United States recognition of foreign judgments has been said to rest on considerations of comity and reciprocity, but comity has been rejected as the basis for the recognition of foreign judgments in England" (1-011). Comity is a common law concept. Since 1971 the recognition of foreign divorces has been regulated by statute, at least in part. Currently in England and Wales there is a self-contained legislative code which governs the recognition of foreign judgments. It is this code which the courts are charged with applying in this and all similar cases.

Again, as Dicey and Morris point out [para 18-067] "The Family Law Act provides that an overseas divorce or legal separation shall be recognised in the United Kingdom if, and only if, it is entitled to recognition under the Act or some other statutory provisions. The effect of this important provision is retrospectively to abolish for all purposes the common law recognition rules…and also to preclude the courts from developing further judge-made rules of recognition."

This is not to say that the principle of comity has no bearing on questions of recognition. For example, in El Fadl -v- El Fadl the principle was invoked by Hughes J. However this was after he had applied s.46, and found the divorce to be a "proceedings" divorce which was recognisable on the basis of both parties' domicile in Lebanon. Only then did he go on to consider whether he should exercise his discretion under s.51(3) to refuse recognition on grounds of public policy. In this context he stated: "I am satisfied that however much a unilateral divorce without notice may offend English sensibilities comity between nations and belief systems requires at any rate this much, that one country should accept the conscientiously held but very different standards of another where they are applied to those who are domiciled in it" (190F)

In summary, there are three points to note: i) comity was invoked at the s.51 public policy stage – not to assist in the application of s.46; ii) s.51 can lead to the refusal of recognition to a divorce which would otherwise be recognised but not to cause a divorce to be recognised which would not be recognised by the operation of s.46; iii) comity was only invoked because both parties were domiciled in the country where the divorce took place. These are not the facts of the present case'.

92. I accept each of those submissions in response by the Queen's Proctor so ably expressed by Miss Wheeler. The Hague Convention did not result at any stage in legislation being passed in this country that allowed the recognition of all foreign divorces. As is said in Chaudhary, the words 'judicial or other proceedings' are plainly words that restrict recognition to a narrower category of divorces than all divorces obtained by any means whatsoever which are effective by the law of the country in which the divorce was obtained' (per Cumming-Bruce LJ).

93. On behalf of the wife it is then submitted at paragraph 26 of Mr Tolson's opening submissions as follows:

''We submit, simply, that a Kyogi Rikon with its definite regular form and is submission to local officials to register the divorce (or not) is sufficient for the purposes of section 46 (1). In essence, our analysis is the same as that of the Queen's Proctor, but we invite a different conclusion. A kyogi rikon is a form of divorce sponsored and regulated by the state and is a process undergone by the parties. It is not unilateral. We rely on the following features in particular: a) The Official form; b) The submission to a government official; c) The need for approval and registration by that government official; d) The need for two witnesses on the face of the document; e) the Government official's ability to refuse registration until formalities are completed; f) The requirement for the consent of both parties; g) The non-discriminatory nature of the process as between men and women; h) Official state recognition of the process; i) legal effect of the process'.

94. The husband and the Queen's Proctor argue that the involvement of the state in Japan in relation to the kyogi rikon is 'simply probative'. In other words, the state merely registers what the parties have done by agreement.

95. My preliminary view was that this submission was correct. Further, I felt very real diffidence about departing from the views of the Queen's Proctor, given the seniority of her position and the obvious quality of Miss Wheeler's submissions. However, I studied that particular submission with particular care overnight on the Thursday of the hearing. I have also delayed giving this judgment for, in a case where there has been such a mass of information to absorb in a very short period, I wanted my thoughts to settle on the issue. On Friday, during closing submissions, I indicated to Miss Stone QC and Miss Wheeler that my preliminary view had shifted as a result of my review of the case law and of the expert's reports. I made it plain that I invited full argument on the point.

96. The conclusion that I have reached is that, in my judgment, the involvement of the state in Japan is not 'simply probative'. Nor can the involvement of the state of Japan be regarded as mere 'surplusage'. The state does not simply prove the divorce that the parties have achieved by their prior act of consent. The consent of itself creates nothing. The registration of the divorce by the state is fundamental to its effect; no registration, no divorce. The fact that the state employee who effects the registration plays no more than an administrative role does not make the procedure as a whole purely administrative (although I accept that Mr Tolson's argument that the employee must 'approve' the divorce is wrong). However, as Mr Tolson QC correctly submits, the state regulates the procedure for the kyogi rikon and the manner of its registration and certification (A3-718). Mr Tolson QC correctly argues further that the kyogi rikon does involve publicity.

97. Although there are elements of informality about it, the kyogi rikon has certain specific formalities. There must be consent of both parties. It does not take effect until the state machinery of registration has been completed. There are specific rules and procedures laid down by the state governing its making.

98. I do not accept the analogy given by Miss Stone QC that the kyogi rikon is akin to land registration (since land registration does not confer beneficial ownership of land and is not a pre-requisite of such beneficial ownership – see section 7 of the Land Registration Act 2002). Land registration merely provides a means by which notice of ownership is given (and limits the recognition of legal title if registration is not effected within a certain period). Registration of the kyogi rikon is essential to its legal effect. Nor do I accept the analogy with an application for a passport, which does not require the consent of two parties.

99. The requirement that both parties should consent to the kyogi rikon does not, of itself, make it 'proceedings' since that would not exclude an entirely personal act between two people.

Conclusion

100. The process taken as a whole brings the kyogi rikon within the ambit of 'other proceedings', in my judgment.

101. I have made very sure in my own mind that I have distinguished between 'procedure' and 'proceedings' – the two do not mean the same thing. Further, I have attached great weight to the submissions of the Queen's Proctor but, at the end of day, I did not feel able to follow her conclusions. I have departed company with her conclusion over the implications of the state involvement in the kyogi rikon.

102. This conclusion, therefore, means that I have to consider section 51 insofar as it relates to section 46 (1). Section 51 (3) provides an additional ground for refusal of recognition.

103. It is at this stage that I need to review the main areas of factual contention relating to the past. Further, I will express my opinion about the wife's domicile at the time that the kyogi rikon was obtained since, if I am wrong about whether this was a 'proceedings' divorce, it may assist in any review of my decision (since domicile is the central issue under section 46(2) of the 1986 Act). I also need to make findings of fact in order that I may deal correctly with section 51(3) of the Act.

104. There are four main periods that have been the focus of evidence:

i) The time of the wife's marriage to Etsuo;

ii) The time when the rikon todoke was signed and, later, submitted for registration (November 1984 to 27th February 1985);

iii) The time when the wife arrived in England (27th January 1985 and the months thereafter). Obviously this overlaps with ii) above;

iv) The period when the marriage of the parties was breaking down and these proceedings were ongoing (i.e. the summer of 2004 to date). I will not deal with this period as a separate heading for I introduce passages from it at various parts of the judgment.

The marriage.

105. The wife has made a number of different assertions about her marriage to Etsuo.

106. In a letter 18th January 2005 (A4- 812) the wife's solicitors said: 'We enclose copy certificate dated 19th February 1990 dissolving the marriage of our client to [F]. She was never married to the other gentleman referred to in your letter under reply'. That 'other gentleman' was Etsuo.

107. In a letter of the 27th January 2005 (A4-815) her solicitors stated that the wife 'confirms that she was never married to Etsuo'. On the same day there was a conversation with her friend 'Steph' (A2-402) in which the wife warns that enquiries may be made about her past and asking Steph (a friend of F, who lives in Lewes) to tell her 'ex' (F) that he should tell anyone suspicious to 'Fuck off'. Plainly she was seeking to fence the husband's enquiries.

108. In a letter dated 10th February 2005 (A4- 818) her solicitors say: 'Our client is adamant that she entered into a valid marriage with your client…Our client tells us that she was not married to the Japanese gentleman to whom you have referred in previous correspondence. Her first year in Japan was spent whilst still in the United States Air Force, after which she had a tourist visa valid for three months with an extension for six months. After that she had to leave the country and re-enter in order to renew the visa, she went to the Philippines as and when necessary in order to fulfil that requirement'. The untruthfulness of this letter does not require further comment.

109. In a letter dated 7th March 2005 (820) her solicitors said: 'During the time when our client lived in Japan, she and Etsuo attended many meetings with officials in government buildings, all of which she understood were in connection with her continued residence in Japan. She was therefore horrified to be told approximately ten days ago that one of those meetings was in fact a marriage ceremony which Etsuo had arranged. Happily, however, he subsequently divorced her and he has married someone else'. The contents of this letter are ridiculous and untrue. With the letter were sent the documents that appear at pages A2-261, 262 and 263 (that is the certificates from Japan relating to the divorce). It was suggested by the husband that there was a fourth document that the wife has not produced. I accept the evidence from a Mrs Tthat there was not. However, by this stage it is significant to note that the wife had seen the Japanese certificates of divorce. Not only did she therefore know that the marriage had taken place but also that the divorce had taken place.

110. The process by which the marriage took place is described in documentation at A2-454 to A4-470. That process is entirely different to that described in the letter of 7th March 2005. The wife accepted in evidence that each letter that I have mentioned was written with her express instructions.

111. In her statement at A1-77 the wife said:

i) 'The reason why initially I denied my marriage in Japan was that I did not believe that it was a real legal marriage. I was completely shocked that [the husband] was seeking to use this against me….I did not think that the marriage and subsequent divorce were anything more than a local arrangement and made the mistake of not informing my solicitor or consulting him about it'. I do not believe her;

ii) At A1-81 the wife said: 'I did not declare my Japanese marriage because I did not believe it to be relevant outside of Japan'. Again, I do not accept that this is true;

iii) At A1-84 the wife said: 'I remember asking [the husband] what was going on and why was he bringing up the issue of Japan. I still didn't know exactly what he was trying to do. He told me that he had the proof that I was still married in Japan and I replied that I wasn't but that I did not have any paperwork. He smiled at that said something like: 'oh well, too bad for you, then'. It was at this point that I decided not to tell my solicitor about Etsuo. I was not sure if it was a legal marriage and divorce or not. I had always though of it as a bit of paperwork we signed in order that I could stay in Japan. When [the husband] said with such certainty that I was still married in Japan, I actually wondered if there was a chance this was true; even though I knew that we had gone through a divorce procedure before I left Japan, I wondered if maybe I had been wrong about that or if Etsuo had somehow forgotten to register it or something like that'. I return to this later;

iv) In her evidence, however she said that by at least February 1985 she knew that she was divorced in Japan. Further by January 2005 (20 years later) she knew that Etsuo had remarried; she said: 'I knew this from Kachan to whom I spoke on the phone. I had quite a chat with Kachan. I was told that Eddie had died.' For reason that I give, she did not 'know' that she was divorced by at least February 1985; she hoped that she had been divorced and Etsuo had completed the divorce process following her departure from Japan.

112. the wife gave three different explanations for her initial denial of the marriage:

i) She lied out of fear that her solicitor might 'drop' her as a client on legal aid on the basis that he thought that the prior marriage would invalidate her instructions. That explanation simply does not make sense. By far the more damaging thing in the solicitor client relationship was the fact that she lied to her own solicitor;

ii) She did not believe the marriage was a real marriage, valid outside Japan. I do not believe her;

iii) She was buying time, wanting to obtain evidence of her divorce before admitting the marriage.

113. I do accept that, at this stage, she feared an intense 'rampage' (as she put it) from the husband but I do not think that this justified or explains her lies in any way. Further, I simply do not understand how lying in this way protected her against any rampage or bought her time. If anything was likely to provoke the husband to action it was surely a denial that a marriage took place when that marriage was frequently spoken about during this marriage and was well known to the husband.

114. At A1-85 the wife said at paragraph 45: 'I had always considered F to be my first husband, because he and I had a proper marriage whereas Etsuo and I did not. My application for an ouster order [supported by the affidavit at A2-447 in which she had referred to F as being her 'first husband'] was not based on a false allegation'. It was.

115. She said in her oral evidence that she never regarded the Japanese marriage to be a 'proper marriage'. Her evidence was: 'I thought of it a bit like people getting married at a festival. I thought that the marriage was not legal outside Japan'. I regard that as untrue. If this was her state of belief, why not say so to her solicitors and to the court (e.g. at A2-447).

116. Not only did she initially deny the Japanese marriage in the proceedings with the husband. She also denied that marriage twenty years earlier, when signing herself as a spinster on the marriage certificate when she married F on 3rd July 1985 (A2 -264). This was only eight months after she says that she had left Japan. She cannot simply have forgotten that she had been married to Etsuo.

117. I have no doubt at all that the wife knew full well that she was validly and legally married in Japan to Etsuo. This was her first marriage. She underwent a number of formalities in order to complete it, including swearing an affidavit of competence to marry (A2-469). The fact that it was a marriage of convenience means that she married him for a very clear reason – that is, to stay in Japan. The marriage afforded her a legal status as Etsuo's wife and as a person who was entitled to remain in Japan.

118. Her early assertions about the Japanese marriage are made even more ridiculous when taken in the context of the husband's state of knowledge. He knew about the Japanese marriage 'from the start'. He knew about the marriage to F (and so must have assumed that she was free to marry F). The friends of the parties all knew about her marriage in Japan – it was a topic of conversation that she had been married to a Japanese rock and roll star in the Condition Green band (as Mrs T said in evidence).

119. For reasons that I will explain I accept that the nearest that she got to telling the truth for her initial denials of the marriage was in what she said at A1-84. I stress that this is her evidence in her statement (i.e. 'When [the husband] said with such certainty that I was still married in Japan, I actually wondered if there was a chance this was true; even though I knew that we had gone through a divorce procedure before I left Japan, I wondered if maybe I had been wrong about that or if Etsuo had somehow forgotten to register it or something like that').

120. The passage that reads 'or if Etsuo had somehow forgotten to register it' carries with it the truth. In other words, she was not convinced that the divorce process had been completed in Japan. This is why she suggested that the marriage had never taken place. I do not accept that her doubts were solely linked to what the husband said to her – why else did she call herself a spinster on the F marriage certificate?

121. The above letters and evidence contain obvious lies (and I am afraid that there is no other way of putting it). Having started to lie she decided not to put the record straight and 'come clean'. There may have been many reasons why she decided to behave in this way (e.g. not wishing to admit that she had lied in correspondence and also that she had misrepresented her status in the F marriage certificate). I find that it would not trouble her greatly if she did lie. She is a very unconventional person who has little respect for formality.

122. I accept that Mrs T, most unwisely and on her own oral evidence, advised the wife to stall for time when in January 2005, the wife was faced with the husband raising the question of whether she had ever been divorced in Japan. Mrs Tsays that she gave this advice in order that she might assist the wife in obtaining proof that she had been divorced in Japan. However, the responsibility for this must rest with the wife and she must now be able to see the mess that she got herself into. I am unable to make a finding about whether there was a discussion in August 2004 in which Mrs Tadvised the wife not to mention the Japanese marriage and I do not think that this would alter any opinion that I have formed. Similarly I do not find it necessary to make findings about Mr Slade's comments at A1-44; if the wife did tell him that she was still married to Etsuo she was not reflecting her state of knowledge of the rikon todoke (and, in any event, she was not still married to him in Japan).

The obtaining of the kyogi rikon and the wife's participation.

123. When this case was listed for hearing in March, Mr Cobb QC (who then appeared for the husband) gave forewarning that: 'It will be contended on behalf of the husband that the wife did not in fact participate in the procedure of the kyogi rikon so as to achieve a divorce from Etsuo. That contention has not been repeated at this hearing. Miss Stone QC submitted in opening as follows: 'Did she participate at all in the kyogi rikon? There are only two credible possibilities:

i) She agreed to the divorce and signed it but took no part in the registration. We say the most likely scenario is that she knew nothing about the registration until 2005 – that is why she was frantically trying to find out what had taken place. That is why her solicitor confirmed in correspondence that 'he had divorced her'... I don't think it is disputed by anyone that whether she participated or knew about the divorce does not affect the validity of the divorce in Japan given that it was never challenged. All parties agree that this is a valid divorce from the point of view of Japan;

ii) She never signed anything and simply walked away from Japan without knowing whether she was divorced and took no steps to find out until 2005. That is why she had no recollection of having signed any divorce papers because she never had signed any.'

124. However, it was accepted by Miss Stone QC that the wife had signed the rikon todoke and, therefore, the suggestion that she had not participated at all in the divorce process could not be sustained. Miss Stone QC suggested that the wife had entered into the marriage to the husband (and with F) reckless as to whether her prior marriage to Etsuo had been terminated.

125. The wife was ordered to give an account of how the divorce was obtained. In her statement at A1-49 she said:

'Etsuo and I together with his two friends who had witnessed our marriage namely Katsuhiro Kawamitsu and Shuei Tsuha visited the city Hall in Kitanakagusuku District in the city of Nagagami on the island of Okinawa Japan at my request on the last day of my stay in Japan. We all went there together, there was an official who I think was seated behind a counter and who filled in some forms at the dictation of Etsuo. I do not know how many pages were completed, nor do I know what was said as my understanding of Japanese was and is limited. However, I knew enough to be assured by Etsuo and our witnesses that these were the correct divorce papers and after the official had written them up, I signed my usual signature and the 3 Japanese men impressed their personal stamps, which was their way of signing documents. I was then given a piece of paper which I understood to be sufficient documentary evidence of our divorce, as I recall it had a floral trim. I cannot be precise as to the date, as I have no record now of my final departure from Japan to the United States of America, but I believe it was in the second half of 1984, possibly the autumn…I am pretty certain that the document given to me was imprinted with an official seal by the government officer. Etsuo told me at that stage that we were now divorced and that later he would register the divorce in his family book kept at his village of origin. I would say that the whole process took about an hour to complete'.

126. In her evidence she referred to the rikon todoke. She said: 'I was leaving Japan and I decided to go. We were going to the airport and decided that we ought to get a divorce in case I did not come back. We had to get Etsuo and Eddie out of bed. We went to the city office. We showed our ID and everything and, as far as I knew, that was all that it involved. Somebody did give me something on the day and I got onto the aeroplane safe in the knowledge that Etsuo and I were divorced. The thing that was handed to me, I thought was the thing with the curly border. I kept it in a box and [the husband] must have got rid of it. Since I left Japan it evolved into a story and everyone has heard the story and it has become a funny story'.

127. In her statement, Mrs T said at A1-95, para 16: 'She told me that she had a sort of sponsor marriage to a man she did not have a sexual or any other relationship with and that when she was leaving Japan she went whilst en route to the airport with this man [i.e. Etsuo], her boyfriend and another to the local government office (ward?) and signed papers which the men all stamped to relive him of this before she returned to America as it was no longer needed

128. In an affidavit from the Japanese attorney, Yoko Hayashi dated 27th January 2006 (A1-256) says, uncontroversially: 'If the wife and Etsuo filed the form in the municipal office in October or November 1984 and received documentary evidence of the divorce at that time, as the wife claims, then the municipal office would not have permitted Etsuo to file another form dissolving the same marriage in February 1985. Since the attached form shows that it was filed on February 27th 1985, neither it nor another form dissolving the marriage could have previously been filed in October or November 1984 and of course no such form has been located despite our efforts to locate all of the documents'.

129. The rikon todoke - The document that has been produced at A2-466 showed that the wife did sign an application for the registration of the divorce (rikon todoke). It suggests that she did leave Japan in or about November 1984 (it says that this is when cohabitation ceased, although she did not cohabit at all with Etsuo in the usual sense of that word). It states that her registered address is 'the United States of America'. The wife identified not only her own signature on this document at A2-466 but also the other writing on the right had side of the document recording her name, date of birth, her father's name and the her mother's name. She also wrote her mother's address and zip-code.

130. The husband instructed a hand-writing expert whose report I have seen. Miss Stone QC did not advance that report as providing any basis for rejecting the evidence that I have heard that the wife signed this document and wrote on it. The wife said in evidence that Etsuo would not have known her zip-code.

131. The document contains the thumbprint and the seal of Etsuo. Against the thumbprint is written '39 characters have been deleted'. These deletions can be seen on the document itself (on my count there are in fact 38 characters deleted). They appear to be made where the wife has written something in the wrong place (e.g. where she described Etsuo as the head of her household). I was told by Mr Tolson QC, who had set in motion some very swift and helpful enquiries that the rest of the stamp by the thumbprint states that no other words have been added or corrected.

132. At the bottom of the page is written in Japanese: 'because husband does not have his seal, his thumbprint is affixed for seal for correction'. Underneath that appears Etsuo's seal (which also appears on the marriage registration document at A2-454). The document is witnessed by and stamped with the seals of Kachan and Shuei (the wife's Japanese friends).

133. It is therefore obvious from the face of the document and the evidence that I have heard about it that:

i) the wife did sign it before she left Japan;

ii) Etsuo affixed his thumbprint on one occasion when he did not have his 'seal chop'. On another occasion he affixed his seal. Whether the seal came first or the thumbprint came first depends upon the accuracy of the translation 'thumbprint is affixed for seal for correction'. With Mr Tolson's assistance my initial reading of this line was probably incorrect. I accept his submissions that the plain meaning of those words would be that the document was sealed by Etsuo on one occasion and that the thumbprint was attached later to approve the corrections which had to be made.

134. The wife's suggestion that she left Japan with a document with a floral trim seems highly improbable. Plainly the kyogi rikon was not completed until some three months after she left Japan. The only document that has been produced bearing a floral border is the certificate of acceptance of the divorce (i.e. the document in the form shown at A2-261 and translated at A2-262). As Ms Hayashi states, no such certificate would have been granted three months before the divorce was made. Further, the wife has made reference to that document in the context of a belief that a divorce was effected when she was in Japan; it was not.

135. The wife says that she kept the document in a box at the former matrimonial home and that the husband must have removed it. I consider to a high degree of probability that this is untrue. I say that for these reasons (and many more could be listed):

i. The wife's lack of credibility on other issues;

ii. The fact that no explanation has been tendered as to what the document might have signified, given that it could not have certified a divorce that had not yet occurred;

iii. The wife's own evidence at A1-84: 'I did not have any paperwork';

iv. The wife's initial and untruthful denial of the marriage – if she knew that there was a document recording the divorce she would have said immediately: 'There was a marriage and there was a divorce; I have a document to prove it'. If by then she thought that the husband had removed that document, she would have said so straight away (e.g.: 'there is a document recording the divorce which, as your client well knows, he removed from her possession');

v. The fact that she called herself a spinster on the marriage certificate to F. If she had a document in her possession that showed that she had been divorced in Japan she would have produced it rather than take the expedient and untruthful course of describing herself as a spinster;

vi. She did not mention the prior marriage to Etsuo when applying for a passport for B. At A2-378 the document headed 'reporting the birth of a child born in the UK to a US citizen' states: 'it is necessary to show termination of all prior marriages'. If she had such a document in her possession she would have produced it then.

vii. If the husband had removed the document he would not have pursued with such diligence the search for evidence relating to this marriage. Further, when the wife denied the marriage he would have produced the document to prove her untruthfulness.

136. Nobody has been called to give evidence that they saw the document that the wife says that she received in Japan. The wife said that nobody else did see it. Mrs T said that the wife spoke to her about such a document but I treat that evidence with great caution; Mrs T is firmly wedded to the wife's camp, gave the wife advice to 'buy time' when the wife was asked about the marriage to Etsuo through solicitors' correspondence and alleges that the husband has bugged her house (and, therefore, there is hostility between the husband and Mrs T).

137. I find to a very high degree of probability that the only logical explanation for the contents of the rikon todoke and the wife's subsequent actions is:

i) She did sign the rikon todoke;

ii) She thought that she had set in motion the necessary steps to obtain a divorce in Japan;

iii) She hoped that Etsuo would complete the procedure after she left but held a residual fear that he had not. That fear was only laid to rest when she obtained documentation in 2005 that a certificate of divorce had been granted twenty years earlier.

138. I am quite unable to say whether or not she signed the rikon todoke at the city hall as she suggested at A1-49. She may well have signed it elsewhere, leaving it to Etsuo to complete the registration as he eventually did. Her suggestion of a hurried visit to the city hall to obtain a divorce on the day of her departure sounds fantastical but is just possible. Wherever she did sign it, she did not leave Japan thinking that she had concluded the divorce process. The impression that I have of Etsuo is that she would have had every reason to fear that he might not organise himself sufficiently to do so. As it is, it would appear that it took him until the end February to complete the divorce process. This resonates with what she says at A1-84: 'I knew that we had gone through a divorce procedure before I left Japan, I wondered if maybe I had been wrong about that or if Etsuo had somehow forgotten to register it or something like that'.

139. Of course the passage of time may cause detail to be lost to memory. However, the wife's statement at A1-49 purports to recollect considerable detail. She would not have forgotten that story if it was true. Therefore, I do not believe that she would have been unable to recall the circumstances of her first divorce as suggested at A1-85 (42). She knows full well what happened.

140. There is a suggestion by Nicholas at A6-1165 that he 'thinks' the wife received a letter in England saying that she was now divorced from somebody in Japan (a letter which the wife did not herself remember twenty years later). Nicholas has not been called to give evidence (this was a pragmatic and, in my judgment, entirely correct judgment call by all parties, particularly Miss Stone QC). Nothing in his statement detracts from the opinion that I have formed about the truth concerning the wife's state of knowledge of the divorce.

Domicile

141. I need now to go on to consider the position relating to the wife's domicile at the time of the kyogi rikon. I do this because it was an arena that took up a great deal of the court time due to the contentions of the Queen's Proctor and the husband that this was a non proceedings divorce. Although I would have been delighted if I could simply have ducked that issue as a result of my findings that this was a proceedings divorce, I fear that I cannot do so. The parties have asked me not to duck it.

142. The definition of the word domicile has been considered by the House of Lords in Mark -v- Mark [2005] 3 WLR 111. In that case Baroness Hale gave the leading speech in which she said:

'[39] An adult can acquire a domicile of choice by the combination and coincidence of residence in a country and an intention to make his home in that country permanently or indefinitely: see the joint report of the Law Commission and the Scottish Law Commission, The Law of Domicile (1987) (Law Com No 168, Scot Law Com No 107) para 2.6. There is a long line of cases showing that an alien may acquire a domicile of choice in this country even though he might be required to leave at any time by executive action with no right of appeal: see Boldrini -v- Boldrini and Martini [1932] P 9, [1931] All ER Rep 708, CA; May -v- May [1943] 2 All ER 146; Cruh -v- Cruh [1945] 2 All ER 545; Zanelli -v- Zanelli (1948) 64 TLR 556; Szechter (orse Karsov) -v- Szechter [1970] 3 All ER 905, [1971] P 286. Indeed, as already seen, aliens were always in that precarious position, and could otherwise never have established a domicile of choice here. In May -v- May the principle was applied to a German Jew who had been given only limited leave to land here in 1939. In Cruh -v- Cruh, Denning J applied the principle to a man of Austrian or German origin who had been recommended for deportation following a conviction for conspiracy and whom the Home Secretary intended to deport as soon as it became practicable to do so. Until the recommendation was actually effected, the domicile of choice remained. Once that happens, however, the domicile is lost.

[44] The object of the rules determining domicile is to discover the system of law with which the propositus is most closely connected for the range of purposes mentioned earlier. Sometimes that connection will be an advantage to him. Sometimes it will not. As Hughes J put it (at para 73): 'º the concept of domicile is not that of a benefit to the propositus. Rather, it is a neutral rule of law for determining that system of personal law with which the individual has the appropriate connection, so that it shall govern his personal status and questions relating to him and his affairs.' Recognising that connection despite the illegality of his presence here does not therefore offend against any general principle that a person cannot be permitted to acquire a benefit from his own criminal conduct.

[45] Unlike some of the purposes for which habitual residence may be important, the state has no particular interest one way or another. Indeed, insofar as it does have an interest, this will probably lie in accepting that those who intend to remain here permanently have acquired a domicile here, whatever their immigration status. The actual results in Solomon's case and Smith's case, in denying relief to the innocent party to a matrimonial dispute, did no one any good. While it might be said that the injustice stemmed, not from the principle under discussion, but from the common law's insistence that a wife was domiciled where her husband was domiciled, it would still have been in everyone's interests that the affairs of such long term residents were governed by the laws of the country with which they were so closely connected. The supposed principle served only to separate them from the most appropriate legal system to govern their affairs';

[46] As a matter of principle, that connection is established by the coincidence of residence and the animus manendi. If a person has chosen to make his home in a new country for an indefinite period of time, it is appropriate that he should be connected to that country's system of law for the kind of purposes for which domicile is relevant. It would be absurd if this wife's capacity to make a will, succession to her moveable property, and her children's right to make a claim under the 1975 Act against her estate were not to be governed by the law of this country.

[47] If there is no reason of public policy to deny the acquisition of a domicile of choice in such cases, can it nevertheless be said that legality is an essential element in residence (as it appears that Dicey and Morris regarded it) or in the formation of the animus manendi (as Briggs ACJ in Smith's case regarded it)? Both, however, are issues of fact. As we have already seen, one can be resident in a place where one has no right to be. One can also form an intention to remain in a place despite considerable uncertainty as to whether this will be possible. English law requires only that the intention be bona fide, in the sense of being genuine and not pretended for some other purpose, such as getting a divorce to which one would not be entitled by the law of the true domicile.

143. These proceedings were adjourned in March in order that the wife and her legal team could investigate the arguments that they wished to pursue that, if this was a non-proceedings divorce, the wife was domiciled in California at the time that it was made. After all closing speeches had ended on Friday afternoon, Mr Tolson QC indicated that he wished to make a further and substantial speech about the law of domicile. Matters began to get somewhat undisciplined and, I know people were by then tired. This has been a difficult hearing and I am sure that the advocates have been working very long hours to accommodate it; I know that I have.

144. I therefore declined to hear Mr Tolson QC in oral submission and ordered that, if he wished to make further submissions about domicile, he should send those submissions to me in writing by the Monday after the hearing and I would consider them. Due to the other commitments of Miss Wheeler and Miss Stone QC I knew that they would not able to respond to any submissions until the end of August.

145. I therefore indicated that my preliminary opinion was that the wife was domiciled in England at the time of the kyogi rikon and that if Mr Tolson's arguments invaded that opinion I would list the matter for oral submissions in September. If they did not, I would deal with them as part of this judgment.

146. True to form Mr Tolson QC sent me a helpful submission on domicile within the time limit that I had laid down. I have, of course, read it. He submitted as follows:

'…we refer no further than to all the authorities relied on by the Husband namely, Re: Fuld's Estate (No. 3) [1968] P 675 ("the acquisition of a domicile of choice was a serious matter, not to be lightly inferred from slight indications or casual words…") (Tab 7); Stanley -v- Bernes (1830) 3 Hag Ecc 373 ("the force of residence, as evidence of domicile, is increased by the length of time during which it has continued" (at 437))(Tab 8); and Casdagli -v- Casdagli (1919) AC 145 (what was required was: "…an intention to remain without any intention of further change…").

But especially we rely on Rules 10 and 11 of Dicey & Morris and the commentary and illustrations thereto, and on the cases referred to therein (Tab 9). During her submissions, Counsel for the Husband did not take the Court to anything but a small extract from Tab 9. In reply, we rely on the entirety of Tab 9. At the risk of repetition, we submit there is no case in which a domicile of choice has been found on facts close to those in the present case.

We refer the Court in particular to 6-055 and the footnotes on an intention to marry. The only recent case is Cramer -v- Cramer [1987] 1 FLR 116 – footnote 18. There it was said: "the matter that [the judge] had to decide was not whether she was sure that Dr Cramer at the relevant time intended to marry Dr Martin if and when that became possible and that Dr Martin intended likewise; the matter that the judge had to be satisfied about was that Dr Cramer had, when she presented her petition, the fixed and settled determination to reside in this country for the indefinite future and that her intention was to make her home in England for the indefinite future. It was not a question of whether she was going to live with Dr Martin: that was not sufficient in my judgment to decide the issue…" (119G-120A). Moreover, "As my Lords have said, the intention which Madame Cramer had when she came to live in this country was an intention of a particular purpose, namely, to be with, and hoping eventually to marry, Dr Martin. In my judgment that is not a sufficient intention, in all the circumstances of the case, to satisfy the strong burden necessary to acquire a domicile of choice". We rely on the entirety of all 3 judgments, especially the comments of Mustill LJ and Balcombe LJ. It is to be noted that Cramer is recorded in Dicey as a dilution of the argument that an intent to marry would indicate in any event a conditional intention to remain in a country – conditional on the ceremony taking place.

We do not submit that this, or any other case, is indistinguishable on its facts from the present. We do submit, as we did in our oral reply, that the thrust of all the cases in 'Dicey' – indeed of all reported cases of which we are aware – is that the Wife in the present case could not have acquired a domicile of choice in England by 27th February 1985.

147. 'Rule' 10 in Dicey and Morris states: 'every independent person can acquire a domicile of choice by the combination of residence and intention of permanent or indefinite residence, but not otherwise'. That 'rule' is entirely (and unsurprisingly) consistent with the law as I had already taken it to be from Mark -v- Mark. I question the benefit that is to be derived from referring to case law that stretches back to the 18th century when there is a recent authority from the House of Lords that incorporates the past and expresses the principle. In my judgment the decision of Mark -v- Mark, read carefully, provides as much as is needed to identify the principle. Further the contents of paragraph 6-037 of Dicey and Morris make it plain that the chapter to which I have been referred was written before the decision of the House of Lords in Mark -v- Mark; the 'updater' (or 'service issue' as the equivalent in Rayden is called) for this chapter appears as the last page of Miss Stone's documents at tab 9 and refers to the Court of Appeal decision in Mark (which was, in fact, affirmed by the House of Lords).

148. There are obvious pitfalls in referring to the facts of a raft of old case law since no two cases are the same. Further, there is always a temptation to engage in selective reference to authorities that may appear superficially to almost fit the facts of the case in question but do not.

149. I give these examples (without typing into this judgment all of the footnotes that go with the text) of how other selective drawing from Dicey and Morris might counter Mr Tolson's thesis that 'a finding that the Wife had acquired an English domicile of choice by 27th February 1985 would be out of kilter with the decided cases in this area (whatever view the Court takes as to the facts'):

i) 'It is not, as a matter of law, necessary that the residence should be long in point of time (Bell -v- Kennedy [1868] LR 1 Sc & Div 307): residence for a few days or even for part of a day is enough (White -v- Tennant 31 WVa 790 8 SE 596). Indeed, an immigrant can acquire a domicile immediately upon his arrival in the country in which he intends to settle (Bell -v- Kennedy, ibid). The length of residence is not important in itself; it is only important as evidence of animus manendi' [para 6-036];

ii) A person who determines to spend the rest of his life in a country clearly has the necessary intention even though he does not consider his determination to be irrevocable (Stanley -v- Bernes (1830) 3 Hag Ecc 373, etc). It is rare, however, for the animus manendi to exist in this positive form, more frequently a person simply resides in a country without any intention of leaving it, and such a state of mind may suffice for the acquisition of a domicile of choice….a person who intends to reside in a country indefinitely may be domiciled there although he envisages the possibility of returning one day to his native country [para 6-040];

iii) 'There is, furthermore, no circumstance or group of circumstances which furnishes any definite criterion of the existence of the intention. A circumstance which is treated as decisive in one case may be disregarded in another, or even relied upon to support a different conclusion' [para 6-049];

iv) 'In order to determine where a person was domiciled at a particular time, the court may take into consideration his conduct after that time. But, of course, such evidence is not decisive [para 6-052];

v) 'A person who resides in a country from which he is liable to be deported may lack the animus manendi because his residence is precarious. But if in fact he forms the necessary intention he acquires a domicile of choice [para 6-060].

150. Rather than play bat and ball with centuries of past case law I prefer to keep this issue as simple as I think is both appropriate and possible. I find, of course, that the wife was resident as an inhabitant of this country at the time of the kyogi rikon. That being so, I have to ask myself in the words of Baroness Hale: Did she have 'an intention to make her home in this country permanently or indefinitely'?

The wife's entry into England

151. Having been alerted to the significance of domicile, the wife says in her recent statement at A6-1098:

'In early 1985 I travelled to the United Kingdom on a tourist visa to visit a friend. At that time I had no plans to stay in the United Kingdom, I travelled with one suitcase and left the remainder of my belongings at my mother's house. Therefore on 27 February 1985 I was domiciled in California. My situation in the United Kingdom changed in the Spring of 1985 when I met and became romantically involved with [F]. We decided to marry and in July or August of 1985 after our marriage I became a resident of the United Kingdom. However, I did not change my domicile, I remained a citizen of the United States of America'.

152. That statement was filed at the court's direction before the immigration file relating to her entry into the United Kingdom was found. It is typically untruthful. Nicholas was not her 'friend', as she admitted in evidence. Her suggestion that her statement was expressed in terms that were intended to be protective of Nicholas (which is the account that she gave in oral evidence) is similarly fictitious. The above passage of her statement involves a collision of concepts without proper definition. As an independent source of evidence this part of her statement is forensically valueless.

153. Annexed to the wife's statement were letters from various friends and family members. Her mother has written a note in which she says: 'In the fall of 1984 she was living with me and spending time with family and friends. At the invitation of a friend she met here, she took a trip to the United Kingdom, in early 1985 to visit her friend. I had the impression she would be gone a month or so.' Thus her mother appears to be supporting the account that the wife accepted in oral evidence to have been untrue. Similar notes have been written by friends of the wife (at A6-1112 and at A6-1115) and by the wife's uncle, at A6-1116.

154. The immigration file forms a central part to the submissions and evidence that I have heard on this issue. It is contemporaneous and made for purposes other than these proceedings. It is necessary, therefore, to establish a chronology.

155. 29th January 1985 - The wife arrived in the United Kingdom. Her landing card is endorsed with the following entry [p1142]: 'Leave to enter the United Kingdom, on condition that the holder does not enter employment paid or unpaid and does not engage in any business or profession, is hereby given for six months'.

156. At p1143 the document continues: 'Max 6 months. Visit boyfriend. British [man]– at address over – owns a house, salary £10,000. $2 [i.e. this suggests that she had $2 in her possession] - pay chq (i.e. cheque) at end of month $640.. Will leave UK to marry if they decide to. Has lived in Japan for 2 years. Plans to get married in future. Understands employment prohibited.'

157. The wife accepts that she must have told the immigration officer that they were thinking of getting married. In evidence she said: 'Nick must have been with me. I would not have known his salary…Nick would have been with me at the desk. I think that they asked us what our plans were and I think we were saying that we planned to get married in the future. That was not true but I think that we got carried away at the immigration desk. I don't know why we should not have told the immigration officer the truth - I think we were just young and we got carried away. I had no intent to stay here. If someone had said lets go to Spain or somewhere else I would have gone. I did not think about my long term future. I wanted to travel. I think that I wanted to end up in Portugal eventually due to the horses. I was just open to whatever happened next. I still had the traveller mentality '.

158. In evidence she also said: 'I did have a sexual relationship with Nicholas. The first sentence in paragraph 4 of A6-1098 [in which she says that she came to the UK to visit a friend] is there because 20 years had passed since all, this happened and I do not think of him in any romantic connotations. I did not want anyone to dive into his past. I thought that 'friend' covered it. I had only known Nicholas a couple of weeks. When we met in the USA we spent time moving about with other friends and he asked me if I wanted to come over to see him in the UK and there was all the excitement of 'is this the one… is this one' as people, do in their 20's. I don't think that either of us ever discussed marriage. People get carried away when they first get together and I was coming over here to see if we did have a future together, to see whether it was going anywhere. I have not spoken to Nicholas recently. The last time I spoke to him was 20 years ago, I think.'

159. The document at A6-1157 (a report of an enquiry by an immigration inspector called Miss Allen) records that in January 1985, shortly after her arrival, the wife had applied for employment at Court House Farm; in evidence the wife thought that she obtained that employment in February 1985. The wife accepts that she realises that she should not have been working at all. So by then she had found employment and was professing an intention to marry Nicholas ('I think we were saying that we planned to get married in the future').

160. At A6-1158 that document continues: 'In the course of conversation [the wife] told me that, at the time of her arrival in the UK in January 1985 she had been disillusioned with her work and life in California and had come to the UK for a long-term change of lifestyle. She said that Nick had been only a casual acquaintance, met through mutual friends during a visit he had made to the USA in summer 1984, and that he had simply offered to accommodate her during her stay. She said that she had decided soon after her arrival that he was an unstable character and meeting F provided her with a way out of the situation (and alternative accommodation). [The wife] said she had no immediate plans to return to California to live and that F's commitments, in any event, precluded this'.

161. In evidence the wife said that she could have been disillusioned with life in California and may well have told the immigration officer that this was so. This accords with what the husband says that he was told by the wife (at A6-1119). I accept that the wife did tell him this. I do not accept that this passage in the husband's statement was taken from the wife's book, as Mr Tolson QC suggested to the husband; some of the information set out in this passage does not appear in the book. I therefore find as a fact that she came to this country for a long-term change of life-style, being disillusioned (and, therefore, rejecting of) her domicile of origin, California.

162. 3rd May 1985 - The wife wrote to the Home Office [A6-1145] saying: 'I am writing this statement to accompany my application for a work permit. I came to England with the intent to marry [Nicholas]. Since my arrival, Nicholas and I have decided not to get married…I have 10 years of experience working with horses…Soon after my arrival in England, I learned that the internationally known Arabian stud was located nearby Lewes, where I am currently residing…I have since visited the farm several times, and have talked with the owner, about possible future employment. He has not been able to find a suitable handler for his stallions, and he and I both feel that I would be the right person….I am also currently involved in a course of independent studies towards taking the British Horse Society exams in the hope of obtaining certificates in stud work and riding instruction. [Nicholas] has kindly agreed to house and support me while I await your decision on my application'.

163. When asked about this in evidence, the wife said: 'I think that I came over here to check it out. I don't think that we had serious intent. I think that everything was open to testing. I cannot explain why I used these words. I may have intended to marry [Nicholas] at the time it is a long time ago, I don't remember'.

164. 3rd July 1985 – The wife married F [A2-264 is a copy of the marriage certificate]. They must have announced their marriage at least 21 days before this. The certificate states that she was living at the home of [Nicholas]. She denied that the relationship was one of convenience and said in evidence:

'My marriage to [F] was contracted so that I might stay with[F]. We got married sooner than we should have in order that I might stay with[F]. I did live with him in a full marital relationship for about a year; I cannot stay specifically for how long. [F]had been in a relationship with[K]; they are still together now. There relationship was running out at the time that we married.

I did not continue to live with [Nicholas] until after my marriage to F. I did rent a room at The Forge, about 9 days later. I rented the room because I wanted to help out and let K and F have a relationship together at the home that they occupied at Malling Street. I spent one night a week in that room and spent the rest of the time in the flat with F and K. I did not share any of this with the immigration officer. At A1-78 I say correctly that F and I enjoyed a 'proper marriage until it broke down in 1986/7'.

165. I have not heard from F or K. It is not necessary to drink too deeply from the cup of street-wisdom to understand why it might be suggested that the marriage to F was one of convenience. He has apparently remained in a same sex relationship with the same person before, during and after the marriage. Her permission to remain in this country (where she intended to live) was due to expire (i.e. six months from January 1985). She lies out of convenience. Within 9 days of the marriage (at a time when she must have had very limited funds), she rented other accommodation (although she says that she only occupied it for one day a week and lived for the rest of the time as a ménage a trois). I do not make findings on this issue because I do not have the full range of evidence that is necessary to do so. I have very profound doubts about her evidence concerning the reasons for her marriage, however. If she married him after such a short acquaintance and in such bizarre circumstances, it adds further to the impression of someone who had formed a clear intention to remain in this country and had little hankering for her native land. If it was a marriage of convenience (which, on what I have heard, seems to be the greater possibility) she can only have done so to remain in this country.

166. 5th August 1985 - A Home Office enquiry [p1154] recorded: 'The wife came as a visitor in January 1985 to see her boyfriend whom she was going to marry. However, soon after she arrived in the UK she met another man F and so the previous relationship came to an end. Decided to marry in May and did intend to marry at the end of 1985 – but as her Leave To Remain was to expire – they wed sooner. No family from either side attended the wedding – with about 15 friends –Old Passport lost while moving home. Although husband is not here in public enquiry office I've no reason to doubt marriage'.

167. 11th July 1985 - A letter was sent by the Department of Employment to a man , who had become involved on the wife's behalf with the immigration application [p1147]. That letter concluded: 'however, the job described in the application, although skilled, is not judged to be of a high enough level of skill and responsibility to match that now set for the work permit scheme. For the reasons given in the preceding paragraphs, it is regretted we are unable to approve the application and have advised the Home Office accordingly'.

168. On the same day an anonymous letter was sent to the Home Office suggesting that the marriage to F was one of convenience for immigration purposes, had never been consummated and that F was a homosexual. The letter stated that Mrs F [i.e. the wife] was working illegally at Court House Farm [A6-1156]. The wife said in evidence that she thinks that this letter was written by the wife of a man with whom she had a one night stand.

169. 25th October 1985 - The enquiry at A6-1158 by Miss Allen concluded that: '…I share the suspicions of the author of the anonymous letter. Marriage to F came at a convenient time for [the wife] when she was aware her permission to take employment and reside in the UK was in the balance. From what she said to me and from subsequent events it would seem that employment and settlement in the UK were her primary reasons for travelling to the UK. The speed with which she arranged to marry F and his own wish to distance himself from the outset from the marriage and all subsequent enquiries concerning it, further point to it being one of convenience. The fact remains, however that [the wife] has already been granted ILR [indefinite leave to remain] on the basis of her marriage and, despite all the above factors, I do not, on balance, consider that the evidence is strong enough to override and reverse that decision'.

170. The wife had not, of course, told the immigration authorities that she had previously undergone a marriage of convenience in Japan with Etsuo. I note, in particular, the suggestion of Miss Allen that 'employment and settlement in the UK were her primary reasons for travelling to the UK'. I find as a fact that settlement in the UK was her reason for coming here.

171. A statement has been filed byNicholas. It is at A6-1163. In it Nicholas states that:

i. He and the wife had met in California during the autumn of 1984 and had fallen in love (paragraph 5 at p1164);

ii. He suggested that the wife should come over to England 'because I thought that we would be happy together' [paragraph 6];

iii. When the wife arrived in the United Kingdom he did not regard himself as engaged to be married but was very much in love with her and wanted to be with her. He understood that she wanted to be with him and that this was the reason for her being in England [paragraph 8];

iv. The wife lived with him 'in every sense ' at his home in Lewes but 'at some point she moved out and the affair came to an end' [paragraph 10];

v. He says that he has a recollection that the wife became very excited whilst living with him when she heard that was divorced from somebody in Japan [paragraph 11];

vi. 'To summarise: When I arrived in England I hoped and I think she hoped that it would be permanent and that we would live together in the long-term. In the end things did not work out as I had hoped' [Paragraph 12].

172. There is also a transcript of a telephone conversation that the husband held with Nicholas (A6-1245). I think it is of no evidential value since it is quite plain that the husband was putting Nicholas under intense pressure and was hunting for evidence. Some of the husband's assertions to Nicholas in this telephone call were incorrect (e.g. at A1-1245).

173. I find as a fact that the wife did have an intention to make her home in this country indefinitely. That is why she came here. Her intention to remain indefinitely was formed when she arrived under a pre-existing arrangement with Nicholas. Having come here, she did everything possible to further that intention. I accept what she said to Miss Allen and to the husband – she was disillusioned with her life in California and 'had come to the UK for a long-term change of lifestyle'. She had no plans to return to California (even if it could be shown that she had a return ticket, a point that I would not accept on her oral evidence alone). I have no doubt that she saw this as a new start for her and I strongly suspect that she became absorbed with the opera and theatrical connections that she made before coming here. Her oral evidence on this issue was typically valueless.

174. I base my conclusions on the following:

i. What the wife herself said at the time. The contemporaneous documents show that she did plan to marry Nicholas (A6-1143 and A6-1145). If that was true she plainly intended to make her home here with him (he has worked in the same post since 1977 and still does so – A6-1163). If her evidence about her marriage to F is true, she is a woman who is quite capable of forming an intention to marry very quickly and in most bizarre circumstances. Further, the aspiration for a long term relationship at the time is recognised by Nicholas in his statement at A6-1165;

ii. If the wife did not plan to marry Nicholas, why did she say that she did? Mr Tolson suggests that on this issue (and on any other issues where a lie is suggested, I should give myself a form of Lucas direction that a Judge would give to a jury in a criminal case). That direction, frequently given in criminal proceedings, arises from the case of R -v- Lucas [1981] QB 720 CA. It involves asking myself whether something is a lie and, only if it is, asking myself whether the lie is relevant to the issue in point (bearing in mind that people may lie for very many reasons such as embarrassment, concealment of some other misconduct, etc). I am not able to say whether her account of an intention to marry Nicholas is a lie. However, I am able to say that, if it was a lie, the only explanation for it was a desire to stay in this country indefinitely.

iii. I do not accept that Mr Tolson's submission that 'if false, the reason for the falsehood is most likely to have been a desire to indicate to the immigration authorities the necessary amount of support to demonstrate that the Wife was to be self-sufficient during her stay in England without resort to the public purse'. I regard that submission to be speculative and contrary to the case that the wife gave on her sworn evidence. In evidence the wife suggested that she came here to see if the relationship with Nicholas worked out and that she was still of a mind to travel. However, if that was so, why should she have not said so? It would have been perfectly acceptable for her to say, as an American citizen, that she was here to visit a friend. If she had intended to go back to California after a month she could have done so. Subsequent events do not support her evidence (in that she did not travel and has stayed here ever since).

iv. She told the immigration officer Ms Allen that she was disillusioned with California and had come to the UK for a long-term change of lifestyle. She confirmed in evidence that she may well have said this (and there would be no reason for this to have noted by the immigration officer if she had not said it). I accept that she did say this and that it represented the truth as subsequent events have shown;

v. Although future events do not create past intention they certainly can illuminate it. The wife did not return to California for three years (A6-1098). She obtained work here. She married here. She studied for her British Horse Society examinations. She has remained living here ever since under an indefinite leave to remain that was obtained within months of her arrival;

vi. She had, in fact, only been in California for two months before coming here. Prior to that she had been in Japan for 5 years. Although California may be her domicile of origin she left there in 1980/81 and has not returned to live there for the past 26 years save for those two months. This is entirely consistent with her disillusionment with California.

vii. Her current evidence has no value due to what I have said about her credibility.

175. In oral submissions, Mr Tolson referred me to a string of factual possibilities that are mentioned in Dicey and Morris (enclosure 9 of Miss Stone's bundle of authorities at para 6-044). I review the facts of the present case as I find them to be.

176. I find that the wife came here with the intention to stay here indefinitely and has done so. I reject the picture that the wife sought to paint of herself as a travelling soul who came here in transit. She has deliberately attempted to obscure the truth by giving false evidence.

177. Therefore, if this was a non-proceedings divorce I would have found that the wife was domiciled in this country and, therefore, the petition for nullity would have succeeded. I would also have stressed however the points that I have made above under the heading 'the technicality and narrowness of this case'. If the petition had succeeded it would have been a conclusion that is far distant from the facts of Whiston -v- Whiston [1995] Fam 198 [1995] 2 FLR 268 (to which Mr Cobb QC made express reference in his opening in March 2006) and of a much lesser level of culpability than even Rampal -v- Rampal (No 2) [2001] EWCA Civ 989 [2002] Fam 85, [2001] 1 WLR 795, [2001] 1 FCR 552, [2001] 2 FLR 1179.

Section 51(3)

178. As a proceedings divorce (as I have found it to be) I have to consider first whether, under section 51(3)(a)(i) of the 1986 Act, the divorce was obtained 'without such steps having been taken for giving notice of the proceedings to a party to the marriage as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken'. On the findings that I have made I do not consider that this applies. The wife did have notice of the proceedings and signed the rikon todoke.

179. I next have to decide whether, under section 51(3)(a)(ii) of the 1986 Act, the divorce was obtained 'without a party to the marriage having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as, having regard to those matters, he should reasonably have been given'. The wife took part in the divorce to the extent that she wished; she chose to leave the rest to Etsuo and did so in accordance with Japanese law. On an objective standard, there is nothing unreasonable about that. Nothing under this provision would lead me to refuse recognition of the divorce.

180. Finally I have to consider whether 'recognition of the divorce would be manifestly contrary to public policy.' I accept that this involves a broad review of the actual divorce that has been obtained and is not confined to the fairness of the general divorce provisions of the foreign state.

181. On this issue I have referred to the case of El Fadl at page 189 of the Family Law report, the case of Chaudhary (generally), the case of Eroglu [1994] FCR 525, [1994] 2 FLR 287, and the case of Kendall -v- Kendall [1977] 3 WLR 251.

182. From those cases I deduce:

vi) the power to refuse recognition should be exercised sparingly (El Fadl);

vii) the principle of comity is a relevant consideration (El Fadl);

viii) the subsection confers a residual discretion (Kendall);

ix) the conduct of the parties leading up to the divorce may be a relevant factor (Kendall);

x) Motivation (such as in the exceptional circumstances of Chaudhary) may also be relevant;

xi) The consequences to the parties of a refusal of recognition may also be considered (El Fadl).

183. I see no basis at all why recognition of this divorce should be refused on the ground of public policy. The divorce was obtained over twenty years ago. The wife has remarried twice and has children. Etsuo has apparently remarried. The divorce is recognised in Japan and comity would suggest that it should be recognised here. The wife and Etsuo both wished for there to be a divorce. However reprehensible may be the wife's failure to tell the truth in these proceedings, I do not regard that as raising public policy arguments that would justify a refusal of recognition; the facts of this case are very different from Eroglu.

184. If I had found that this was a non proceedings divorce and that the wife was domiciled in California I would not have refused recognition under section 51 (3) (b) or (c) since the documentation provisions of section 51 (3)(b) are satisfied and the same public policy considerations would apply under section 51(3)(c).

Conclusion

185. I therefore conclude that the kyogi rikon was a divorce obtained by means of proceedings. I find that there is no reason under section 51(3) of the Act to refuse recognition. As a result the nullity petition fails. Subject to any intended appeal, the parties should now focus on resolving the basis upon which a decree of divorce should be made. If an order (which would need to include provision for costs) can be agreed I would be prepared to deal with the matter without attendance at court. In the event that there are arguments about costs, I direct that all parties shall file and serve written submissions on costs at least 14 days before the matter is listed for argument on that issue.

186. If the parties insist upon continuing in the same litigious way as they have in the past it is their prerogative to do so unless and until the court orders otherwise. I do ask them to at least consider whether a more sensible use of their money and a better promotion of their child's interests would be to agree upon divorce terms and then make genuine efforts to resolve the other issues by agreement or mediation. The combined costs of this litigation must already be into six figures. I realise, of course, that any consideration of how this judgment should be regarded will involve the Queen's Proctor.

Stephen Wildblood QC

14th September 2006.