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Ivleva v Yates [2014] EWHC 554 (Fam)

Wife’s application for the recognition of a divorce granted in Ukraine on 9th October 2013 and the dismissal of divorce proceedings brought in this jurisdiction by the Husband’ in April 2013.

This application was brought under Pt II of the Family Law Act 1986. s.45 of that Act sets out that an overseas divorce obtained outside of the British Islands must be recognised if, and only if, it is entitled to recognition by virtue of ss.46 to 49, and that recognition is subject to s.51.

Here there was no reason to doubt that the divorce was effective in Ukraine, and W was arguably domiciled there (s.46). However, s.51(3) sets out that recognition of an overseas divorce may be refused where 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 reasonable have been given.

The court considered the cases of Duhur-Johnson v Duhur-Johnson [2005] para 44, Olafisoye v Olafisoye [2010] EWHC 3540 (Fam) paras 33 to 35 and Golubovich v Golubovich [2010] EWCA Civ 810 para 82.

The relevant principles considered from the above judgments are as follows:

(i) The power in s.51(3) contains a wide discretion. The provisions need not be exercised if the respondent spouse's interests can be met by other means. Those interests must be safeguarded;

(ii) The question to be asked is whether reasonable steps have been taken by the petitioning spouse to notify the respondent spouse in advance of the divorce proceedings taking place;

(iii) In answering that question the judge must look at all the circumstances of the case and the nature of the proceedings in the overseas jurisdiction;

(iv) Whether reasonable steps have been taken is to be judged by English standards in relation to the overseas proceedings;

(v) Whether reasonable steps have been taken is a question of fact in each case (they can be unsuccessful, equally it can be entirely reasonable for not steps to have been taken);

(vi) The issue is not whether the respondent has notice but whether the petitioner has taken reasonable steps to notify the other party;

(vii) This is a very fact specific exercise and requires an intense focus on the steps which were taken and all the circumstances of the particular case;

(viii) This is a two-step process. Taking reasonable steps is merely the first hurdle which opens the gateway to the second stage of an overall discretion whether or not to recognise the overseas divorce. Even if the gateway is opened, the court should be very slow to refuse recognition of the decision and order of the foreign court, particularly where it is clearly that of an independent and properly constituted court;

(ix) The effect of refusing recognition is a "limping marriage", which persists in one jurisdiction but not in another. This is so undesirable that the court leans so far as possible against exercising a discretion to refuse to recognise the divorce.

W (49) was from Crimea, with Ukrainian, Russian and British nationality. She had an adult son aged 26. H (58) was British and been working in the Midlands for the duration of the marriage. W spoke excellent English whilst H had very little knowledge of Ukrainian or Russian.

The parties met in 1999, married in 2000 and in 2003 H adopted W's son. They separated in 2012 but visited W's parents in Ukraine that summer. W said that they had discussed getting divorced in Ukraine but that H would not accept this.

In 2012 the parties discussed an English divorce and consulted English lawyers. In January 2013 W emailed a draft petition for judicial separation to H, but this was never issued. W also had H's mobile telephone number.

During 2013 there were two sets of proceedings in England and Wales: W's petition for nullity (issued in February) and H's petition for divorce (issued in April). H had solicitors on the record and W had solicitors acting in the background.

W's nullity petition failed as there were no grounds for an annulment and, although she originally contested H's divorce petition on the basis that she was going to petition in Ukraine. She then amended her Acknowledgement of Service, stating that she would no longer be petitioning in Ukraine. It then transpired that shortly after filing the amended Acknowledgement of Service, she had returned to Ukraine and issued Ukrainian divorce proceedings, stating that she was unable to provide an address for service for H (notwithstanding that she knew of his solicitors' address in the UK) as she could not reliably state where he was. As a result, H was served by public notice on page 15 of a Ukrainian newspaper, in a small classified advertisement in Cyrillic. The final hearing was held on 9 October 2013 and decided summarily. The judgment finalising the divorce was said to come into effect on 22 October 2013.

In the meantime, H had issued Form A. Forms E were exchanged and H served his questionnaire on 22 October 2013. Although W mentioned the Ukrainian proceedings in her Form E, no details of the proceedings were provided to H until 16 December, some 8 weeks after the Ukrainian judgment and order came into effect.

It was W's case that she was frustrated by delays in the English proceedings. She had informed H of her intention to petition in Ukraine and he had deliberately concealed his address from her. There is no requirement for personal service so it was up to the Ukrainian court to decide how to serve H. W was of the view that she did not in fact have to mention the Ukrainian proceedings at all and said that she had not provided H with documentation because he had "never asked".

The judge found that W could have conveyed information to H by email, text or telephone, at work, through his friends who lived near to her, through his solicitors or through the court. The Ukrainian court was found to have acted on incorrect information emanating from W.

The judge therefore concluded that W did not take reasonable steps to give H notice of the Ukrainian proceedings, before considering whether or not to recognise the Ukrainian divorce. On this he found that justice to H required that recognition of the Ukrainian divorce be refused. Applications of this kind should not be governed by pragmatic reasons alone but also by a "basic sense of fairness".

Kyra Cornwall barrister, 1 Hare Court
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Case No: LE13D00728
Neutral Citation Number: [2014] EWHC 554 (Fam)


4 March 2014

Before :

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Marina Ivleva (formerly Yates) Applicant

John Yates Respondent
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Both parties appeared in person (the husband accompanied by a McKenzie Friend)

Hearing date: 28 February 2014
Judgment date: 4 March 2014
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Mr Justice Peter Jackson:

1. By an application dated 18 December 2013, Marina Ivleva (formerly Yates) seeks (i) recognition in this jurisdiction of a divorce granted in Ukraine on 9 October 2013 in respect of her marriage to John Yates and (ii) the dismissal of divorce proceedings brought in this jurisdiction by Mr Yates in April 2013.  Mr Yates opposes these applications.  I shall refer to the parties as the wife and the husband, conscious that this begs the question of whether they are in fact still married.

The law 
2. The application falls under Part II of the Family Law Act 1986.  Section 45 sets out the scheme of the Act, which is that an overseas divorce obtained in a country outside the British Islands must be recognised in the United Kingdom if, and only if, it is entitled to recognition by virtue of ss.46 to 49, and that recognition is subject to s.51.

3. The provisions relevant to the present case are s.46(1) and s.51(3)(a).

46  Grounds for recognition

(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.

4. These conditions are met in this case.  Although there is no expert evidence, there is no reason to doubt that the Ukrainian divorce is effective in that jurisdiction.  The wife is a Ukrainian national and also arguably domiciled there.

5. The provisions of s.51(3)(a) are these:

51  Refusal of recognition

(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; …

6. The effect of s.51(3)(a) has been considered in the number of first instance decisions, including the decision of Mr Jeremy Richardson QC in Duhur-Johnson v Duhur-Johnson [2005] 2 FLR 1042 at 1052: 

44.  It seems to me that the relevant law can be distilled into the following propositions: …

First: The power contained in section 51(3) as a whole provides for wide judicial discretion. The provisions need not be exercised if the interests of the respondent spouse (as opposed to the petitioning spouse) are met by other means (An example of this is El Fadl v El Fadl). It seems to me that it is important to emphasise that those interests must be safeguarded. I would anticipate that this approach would only be adopted where the respondent spouse has no option under the overseas divorce law but to submit to the divorce. The important point to note is that the judicial discretion is wide and the applicability of the section will vary depending on the many and varied circumstances of each case.

Second: When considering section 51(3)(a)(i) a judge must ask whether reasonable steps have been taken by the petitioning spouse to notify the respondent spouse of the divorce proceedings in advance of them taking place.
Third: In answering that question the judge must look at all the circumstances of the case and the "nature of the proceedings" in the overseas jurisdiction.

Fourth: Whether reasonable steps to notify the other party have been taken is to be judged by English standards having regard to the nature of the overseas proceedings.

Fifth:  Whether reasonable steps have been taken is a question of fact in each case (it must also be remembered that there are cases where reasonable steps have been taken but they were unsuccessful or, in rare cases, where it is entirely reasonable for no steps to have been taken).

Sixth: It is important to note that whether the respondent spouse has notice of the proceedings is not the issue. It is whether the petitioner spouse has taken reasonable steps to notify the other party. The focus of enquiry is upon the actions of the petitioning spouse not simply a question of whether the respondent spouse knew about the proceedings

7. In Olafisoye v Olafisoye [2010] EWHC 3540 (Fam), Holman J said this:

33. I observe and stress at the outset the following matters. First, in this case, and probably in all such cases, the issue is very fact specific and requires an intense focus on the steps which were taken and all the circumstances of the particular case. Second, the focus under sub-paragraph (i) is not upon whether or not, or when, the respondent party actually had notice, but upon the steps which were or were not taken by or on behalf of the applicant party to give notice. In this regard, I agree with, and adopt, propositions (1) to (6) in paragraph 44 of the judgment of Mr Jeremy Richardson QC sitting as a Deputy High Court Judge in Duhur-Johnson v Duhur-Johnson (Attorney General Intervening) [2005] 2 FLR 1042 at pages 1052 to 1053, noting as I do that he had been assisted by the 'helpful, erudite and succinct' submissions of counsel on behalf of the Attorney General (see paragraph [4]).

34. Third, it is very important to keep in mind that under the sub-paragraph there are two stages in the approach of the court. First, it must make an assessment or judgment whether such steps were not taken as 'should reasonably have been taken'; but even if the court adjudges that they were not, that merely opens the door or gateway to the second stage and an overall exercise of discretion whether or not to recognise the overseas divorce… In exercising the second stage of discretion, if the gateway is open and it arises, the court should, in my view, still be very slow to refuse recognition of the decision and order of the foreign court, at any rate when, as here, it is clearly that of an independent, properly constituted court operating a procedure and applying substantive law (as is clear from the documents in this case) which substantially accords with our own. It is not simply a matter of 'comity' or respect for the foreign court. Orderly legal relationships in the international world require that, so far as possible, judicial outcomes in one country can be relied upon in all others provided there was (as here) a proper connection with the first country.

35. The effect of non-recognition here of a divorce which is valid or effective in the country where it was made is to create a so called 'limping marriage' i.e. that the parties are treated as still being married here, when they are not so treated elsewhere. That is so obviously undesirable that the court leans, so far as possible and consistent with the legislation and justice, against exercising a discretion so as to produce a limping marriage.

8. A related, but different, provision was considered by the Court of Appeal in Golubovich v Golubovich [2010] EWCA Civ. 810.  This related to s51(3)(c), which allows the court to refuse recognition on the ground that it would be manifestly contrary to public policy.  In that case an appeal was allowed against the non-recognition of a Russian divorce that followed proceedings between Russian parties in which both had taken part.  As Holman J said in Olafisoye :

82  The judgment of Thorpe LJ, read as a whole, clearly emphasises (as I have myself already stressed) the gravity and undesirability of refusal to recognise a divorce granted by a foreign court of competent jurisdiction, particularly (on the facts of that case) if the foreign state is a member of the Council of Europe (even if not of the EU) and in the situation where (as in that case and in this case) the other party has a Part III remedy here.

9. In the present case, Ukraine is, like Russia, a member of the Council of Europe, though not of the European Union (in consequence of which the provisions of Brussels IIR do not apply).  I am not here concerned with non-recognition on grounds of public policy and as far as I can see there would be no basis upon which recognition could be refused for that reason on the facts of this case.

10. I direct myself in accordance with the above principles and turn now to the facts.  They are not significantly in dispute and, where they are, my conclusions are reached on the balance of probabilities.

The facts
11. The wife comes from a Crimea, an autonomous republic within the state of Ukraine.  She is an ethnic Russian, holding Ukrainian, Russian and British nationality.  She is now is 49 years old and has an adult son aged 26.

12. The husband is British.  He is 58 years old.  He lives in the Midlands and works in vehicle recovery.  He has to all intents and purposes been working from the same business premises throughout the marriage.

13. In 1999, the couple met on an internet dating website.  Both had been married before.  The wife and her son came to England and on 6 October 2000 the parties were married here.  At an earlier date a religious ceremony had taken place in Ukraine.  Married life was conducted in this country, with occasional visits to Ukraine, particularly by the wife.  In 2003, the parties jointly adopted the wife's son.

14. The wife speaks excellent English, while the husband has very little knowledge of Russian or Ukrainian.

15. By 2012, the marriage came into difficulties and in February the wife moved out of the family home.  However, in the summer of 2012, the parties visited Ukraine together for a visit to the wife's parents.  The wife says that they discussed obtaining a divorce in Ukraine by agreement but that the husband would not accept this.

The English proceedings
16. By the end of 2012, the parties had taken legal advice from specialist solicitors in England. 

17. In October 2012, they transferred their interests in the family home to the son, who now remains living there with the wife.  In November, they signed a joint affidavit saying that they were agreed as to their financial affairs.

18. In November 2012 the husband finally moved out of the family home. 

19. In January 2013, the wife e-mailed a draft petition for judicial separation to the husband directly.  In the event, this petition was never issued.  The wife sent several other e-mail messages to the husband then and later.  The wife also has the husband's mobile telephone number, which has remained unchanged, although she last used it to communicate with him in November 2012.

20. During the following months of 2013, two sets of proceedings were running in the County Court: the wife's petition for nullity and the husband's petition for divorce.  The husband was represented by solicitors throughout the year and the wife had solicitors acting in the background.  The husband gave his solicitors' address as his address for service.

21. On 7 February, the wife issued a nullity petition.  Those proceedings continued until November.  Along the way, the husband acknowledged service on 15 April, indicating an intention to defend and to issue a divorce petition himself.  On 24 April, the wife sent a further copy of the nullity petition to the husband by e-mail and he replied acknowledging receipt on the same day. 

22. On 25 April, the husband issued a divorce petition in the same County Court.  When doing so he requested that his address should remain confidential.

23. On 2 May, the court ordered that service of the wife's nullity petition should be served on the husband at his work address, which was set out in the order.

24. On 15 May, at the wife applied for directions in relation to her nullity petition. 

25. On 7 June, the wife filed an Acknowledgement of Service to the husband's divorce petition, stating that she intended to apply for divorce to the court in Ukraine and that she wished to defend the husband's petition.  On 26 June, she filed an amended version of the same document saying that she did not want to defend it after all. 

26. The husband says that his solicitors corresponded with the wife, asking for information about the threatened Ukrainian divorce proceedings.  The wife denies this and, although it seems like the sort of question that would have been asked, I reach no conclusion as no correspondence has been produced. 

27. Between 18 July and 5 August, the wife was in Ukraine.  While there she launched her proceedings (see below).

28. On 7 August, the Court refused to give directions on the wife's nullity petition on the basis that it contained no valid grounds for annulment.

29. On the same date, the husband gave notice of his intention to proceed with an application for a financial order and directions for financial disclosure were given.

30. On 23 September, the wife completed her Form E.  Asked for details of any other court cases, she listed the English nullity and divorce proceedings, giving case numbers.  The list continued: [Court] Ukraine [Type of proceedings] divorce.  No further details were given.

31. On 22 October, the husband filed a financial questionnaire.  Question 2 read: "Confirm the nature of the divorce proceedings in the Ukraine and provide documentary evidence as the husband will say he has received no notice of such proceedings."  The wife did not respond to this request until 17 December.

32. On 4 November, the First Directions Appointment took place.  On that occasion, the husband was represented by counsel and the wife appeared in person.  The appointment was adjourned to 8 January 2014.  Financial directions were given.  The husband was directed to file his application for decree nisi in seven days.  It was directed that the wife's nullity petition would stand dismissed unless she amended it within 21 days. 

33. At this hearing, the wife announced at that she had started Ukrainian divorce proceedings, but produced no documents.  She was directed to provide copies of all such documents (including proof of service on the husband) by 18 December. 

34. I consider that the husband is likely to be correct when he says that the wife told the court on this occasion that there were Ukrainian divorce proceedings in existence, but that she did not tell the court that they had concluded.

35. The wife did not amend her nullity petition and those proceedings accordingly came to an end on 25 November.

36. Between 21 November and 12 December, the wife was again in Ukraine. 

37. On 25 November, the court certified that the husband was entitled to a decree of divorce.

38. On 16 December, the wife for the first time supplied the husband (by e-mail) with copies of papers relating to the Ukrainian proceedings.

39. On 18 December, the wife applied for recognition of the Ukrainian divorce and dismissal of the husband's petition. 

40. On 19 December, the District Judge ordered that decree nisi was not to be pronounced pending further order and referred the matter to the Circuit Judge for hearing on 8 January 2014.

41. On 8 January, the Circuit Judge transferred the matter to the High Court in London and directed the wife to give full particulars of the proceedings in Ukraine and the husband to give full particulars of his knowledge of them, in each case with disclosure of relevant documents. 

42. The matter came before me with a short time estimate on 18 February, when it was adjourned for determination on 28 February.

43. On 18 February, I gave directions for service of certain documents, which were agreed to be handed over by the wife at the husband's place of work.  This was achieved without difficulty the following day

The Ukrainian proceedings
44. According to the wife's chronology, on 25 July 2013 (while she was visiting Ukraine) she instructed a lawyer to issue divorce proceedings on her behalf.  The lawyer was given a full retainer to take all necessary steps.  Proceedings were issued, apparently on 26 July, though no copies have been produced.

45. The wife states that a hearing took place in Kerch Municipal Court on 6 September.  No documentation concerning this hearing has been seen.

46. It may be assumed that the court gave a direction for service on the husband to be carried out by public notice, for on Friday 13 September a small classified advertisement appeared on page 15 of the Central Government of Ukraine newspaper, which is apparently also available on the internet.  This discreet advertisement, written in Cyrillic and bearing the judge's name, called upon the husband to appear at a hearing on 9 October.  Reference was made to Article 74 of the Civil Procedure Code, which provides that publication of the notice amounts to service on the defendant and it was stated that a second failure to attend would result in the court considering the case on the basis of the available evidence.  A copy of this advertisement and its translation were first provided to the husband on 16 December.

47. The wife states that she gave the Ukrainian court no address for service upon the husband and that she informed her lawyer that she could not reliably confirm his whereabouts.

48. On 9 October, the further hearing took place.  On that occasion the wife was absent but represented by her lawyer, and the husband did not appear.  Such information as this court has about the Ukrainian proceedings appears from that court's judgment.  The untranslated record was officially certified on 28 October and the translated version was provided to the husband on 16 December, as recorded above.

49. The record refers to case number 107/7740/13u in proceedings 2/107/2251/13 held at the Kerch Municipal Court on 9 October before two named judges.  It is recorded that: "The defendant did not appear at the trial though he was duly notified of the time and place whereof through the mass media means; and he submitted no applications, petitions nor objections against the said suit to the court."  The court then considered the case by default based on the evidence available.  It dissolved the marriage but, being a judgment by default, stated that it could be reconsidered upon an application submitted in writing by the defendant within 10 days of receiving a copy.  The judgment also gave notice of a right of appeal within 10 days of receipt.

50. The judgment was expressed to come into force on 22 October.  It may be recalled that this was the date of the husband's questionnaire in the English proceedings.

51. Accordingly, according to Ukrainian law these parties have been divorced for over four months.

52. I have no expert evidence in relation to Ukrainian law, but have had the opportunity to read some of that country's legislation in translation.  I do so for context only, careful not to reach any doubtful conclusion. 

53. The Family Code of Ukraine is a detailed code, comparable to our own matrimonial and family legislation.  The procedural rules are the Civil Procedure Code.  Here are some extracts:

Article 27
1.  Persons involved in the case are entitled to get acquainted with the papers of the case, make extracts from it, take copies of the papers added to the case, receive copies of decisions, approvals, participate in court sessions, submit evidence, to participate in the evidence investigation, put questions to other persons involved in the case, as well as witnesses, experts, scholars, claim petitions and challenges, give verbal and written explanations to the court, submit their arguments, views on issues that arise during the court session, and objections to the petition, arguments and considerations of others, enjoy legal assistance, get acquainted with the judgment docket, take copies from it and submit written comments about it incorrectness or incompleteness, listen to the recording of the court session fixed by technical means, take copies from it, submit written comments about it incorrectness or incompleteness, appeal the decisions and the approvals of the court, use other procedural rights, established by law.

Article 74

1.  Court summons are carried out by judicial summons.

2.  …

3.  …

4.  The judicial summons must be handed in so that the person who is to appear in court had enough time to appear in court and prepare for participation in the case reviewing, but no later than seven days before court session, and judicial summons-message in advance.

5.  The judicial summons with the receipt, and in cases established by this Code, together with copies of relevant papers shall be sent by registered mail with message or via courier at the address of prescribed by the party or other person who participates in the case. The party or its representative with the consent of the party may be issued judicial summons to hand in to the relevant participants of civil process. ...

6.  The persons involved in the case, as well as witnesses, experts, scholars and interpreters may be notified or summoned to court by telegram, fax or other means of communication which provide a record of a message or summons.

7. If the person does not actually reside at the address reported to the court judicial summons may be sent to the place of employment.

8.  …

9.  The defendant whose place of residence (stay or work) or the place of location is unknown to plaintiff, even after his appliance to address bureau and law enforcement agencies, shall be summoned the court through advertisements in the press. Since publication of the announcement of the summons to court the defendant is considered to be notified about the time and place of case reviewing. These cases apply the rule of the fourth of this article.

10. The publishing house that shall publish the announcements of the summon during the next year, is determined no later than 1st December of the current year in the manner prescribed by the Cabinet of Ministers of Ukraine.

Article 75 describes the detailed contents of the summons.

Article 76
7.  [For] persons residing outside Ukraine, summons shall be handed over in accordance with the procedure established by international treaties, ratified by the Verkhovna Rada of Ukraine, and upon the absence of such – via diplomatic and consular offices of Ukraine in the state of residence of these persons.

54. I have included these citations as they demonstrate a clear and recognisable system for ensuring a fair trial.  It can be seen that a defendant has full rights of involvement (Art. 27) and of notice (Art. 74.4).  Service of the judicial summons can be by registered post to a prescribed address, be carried out by the other party (74.5) and be achieved electronically (74.6).  A person can be served at their place of employment (74.7).  It is only where the home or workplace is unknown to the plaintiff after enquiries have been made of agencies that service by advertisement in the press arises as a possibility (74.9).  A procedure for persons residing outside Ukraine also appears (74.6).

55. On 26 November, the wife's Ukrainian lawyer replied to the request for copies of documentation following the direction given to the wife on 4 November.  The lawyer replied by "message of nondisclosure", stating that she was unable to divulge any information on grounds that appear to relate to client privilege.

56. The husband states that he never received any documentation or had any communication from the Kerch Municipal Court.  He further states that he did not receive any documentation or have any communication from the wife's Ukrainian lawyer.  The only documentation he received was on 16 December when he received the default judgment, the classified advertisement and the lawyer's message of nondisclosure in the original and in translation by e-mail from the wife on 16 December.  These statements by the husband are not disputed by the wife, and I accept them.

57. On 23 December, the wife sent the husband's solicitor the details of her Ukrainian lawyer for the first time.

58. The wife also states that a religious divorce was obtained in December 2013 in Ukraine, but I have no further information about this.

59. The wife's case is that she was frustrated by delays in the English proceedings, which she attributed to the husband and the court.  She had informed the husband of her intention to take proceedings in Ukraine.  He had deliberately concealed his address in England from her and that it was up to the Ukrainian judge to determine how he was to be served with the proceedings.  The obligation of service fell upon the court.  There was no requirement for personal service.  Her lawyer has done all that was asked and it was the husband's responsibility to respond or not to respond.  The wife in fact says that in mentioning the Ukrainian proceedings at all, she has done more than she was legally obliged to do.  The husband and his solicitors were notified of the pending proceedings in good time but took no steps to restrain her.  She kept him informed as far as it was practical to do so.  Addresses and contact details that she used for him in England in the past had often not achieved a reply.  The classified advertisement was in the equivalent of The London Gazette and could have been translated off the internet by Google translation services.  Both courts, she says, were aware of the concurrent proceedings.

60. As the wife artlessly puts it in her written submission: "... by refusing to provide  wife with information on his whereabouts and address of service husband made it easy to the wife honestly tell the Ukrainian solicitor that wife doesn't know husband's address at the time of filing for divorce in Ukraine."  And as she put it in oral submissions, "The judge was told by my lawyer that he couldn't be found."

61. When asked why documents relating to the Ukrainian proceedings had not been given to the husband earlier than mid-December, the wife replied that she had not received them herself until she visited Ukraine in November/December, and that anyway "he never asked".  She also said that she was 99% certain that he would not have taken part in the Ukrainian proceedings.

62. I find that throughout the period of the Ukrainian proceedings (July-December 2013), the wife had the following means of conveying information and/or documents to the husband had she wanted to do so:

(1) By e-mail

(2) By text or telephone

(3) At his place of work

(4) Via his friends, living across the road from her

(5) Via his solicitors

(6) Via the court.

63. As the parties live in the same general area, it is possible that the wife knew where the husband was living, or that she had means of finding out, but I make no finding about this.

64. I find that the Ukrainian court acted on the basis of incorrect information emanating from the wife via her representative that the husband could not be found for the purposes of receiving notice of the proceedings.

65. In this context I have considered s. 48 of the Act.  This provides that when deciding whether an overseas divorce is entitled to recognition, any finding of fact made (whether expressly or by implication) in the proceedings and on the basis of which jurisdiction was assumed in the proceedings must, if both parties to the marriage took part in the proceedings, be conclusive evidence of the fact found unless the contrary is shown.  Here of course, both parties did not take place in the Ukrainian proceedings, so there is no presumption that the husband could not be served: had there been, it would have been rebutted by the facts.

66. I conclude without hesitation that, having regard to the nature of the proceedings and all the circumstances, the wife did not take reasonable steps to give the husband notice of the Ukrainian proceedings.  I have regard to the fact that the nature of divorce proceedings involves an important change in the civil status of two people.  I also note that the wife was actively participating in English proceedings relating to this marriage.  Moreover, it would have cost her nothing in time or money to have given the husband information about the Ukrainian proceedings at a time when it might have been of use to him.  Instead, she trailed her coat by giving information that she intended to start Ukrainian proceedings, but only provided information after it was realistically too late for the husband to do anything about it.  Had the Ukrainian courts known what this court knows, I respectfully doubt whether it would have authorised service by advertisement as its first option, particularly as the husband had no chance whatever of coming across the advertisement.

67. On the basis of the information provided by the wife, I do not accept that the Ukrainian court was told of the proceedings in this jurisdiction, including one set of proceedings in which the wife was petitioner.  Had it been, it would surely have required information about them. 

68. The more difficult question that then arises is whether recognition of the Ukrainian divorce should be withheld. 

69. In favour of recognition:

(1) It avoids the undesirable situation whereby the parties are regarded as being married in the wife's country but not in the husband's.

(2) These parties are going to be divorced anyway.

(3) Recognition does not bring any readily ascertainable disadvantages to the husband.

(4) Any financial issues can be resolved in this jurisdiction through Part III of the Matrimonial and Family Proceedings Act 1984.

70. Against recognition:

(1) The wife misled the Ukrainian court by representing that the husband could not be found. 

(2) As a result, the husband was deprived of all opportunity of participating in them directly or of making applications concerning them in this jurisdiction.

(3) The problem of the limping marriage is likely to be a short term one.  The parties will probably soon be divorced in this jurisdiction, limiting the period of anomaly between the two systems.

(4) Non-recognition brings no particular disadvantage to the wife.

(5) This is not a case where both parties are foreign nationals and the foreign court represents a natural forum: an example being the case of Olafisoye, where both parties had substantial roots in Nigeria.  Nor is it a case, such as El Fadl v El Fadl  [2000] 1 FLR 175, where notice to the wife of a Talaq divorce would have been of no value to her.  Nor is it a case, such as Golubovic, where both courts were aware of the other's interest and both parties were participating in both proceedings.

71. Taking all this into account, my conclusion is that justice to the husband requires that recognition of the Ukrainian divorce be refused.  Given the false position in which the wife put the Ukrainian court, this conclusion does not represent any lack of comity between the two jurisdictions.  In my view the approach to an application of this kind should not be governed exclusively by pragmatic considerations, although these will weigh heavily.  The exercise of discretion must also be informed by a sense of basic fairness when considering the obtaining of an order that is of great importance to most people.  Plain dealing must count for something, and it would be undesirable if a party who is fully participating in proceedings in one jurisdiction can unilaterally start proceedings in another and then expect recognition of a divorce effectively obtained in secret.  Such a perception can only encourage unruly recourse to other jurisdictions whenever things are not going to plan in this country.

72. I acknowledge that the consequences of recognition might not be heavily disadvantageous to husband, but it is not possible to be sure of this.  One cannot know what he might have achieved had he been given the information to which he was entitled.

73. The conclusion that I have reached conforms to long-standing practice in this court, extending back before the period of statutory regulation under the 1986 Act and its predecessor, the Divorces and Legal Separations Act 1971.   I would instance the decision in Macalpine v Macalpine [1958] P 35, where Sachs J refused recognition of an American divorce that a husband had obtained without notice to a wife by untruthfully telling the American court that her whereabouts were unknown and could not with reasonable diligence be ascertained.

74. I therefore, and with full respect to the Ukrainian court, refuse recognition of the default judgment of divorce granted on 9 October 2013 by the Kerch Municipal Court in case number 107/7740/13u in proceedings 2/107/2251/13.  The marriage between these parties is accordingly still subsisting under English law.  I will lift the stay upon the husband's petition and remit the matter to the County Court for decree nisi to be pronounced at the earliest opportunity.