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Finance and Divorce August 2013 Update

Jessica Craigs, senior solicitor and David Salter, Joint Head of Family Law at Mills & Reeve LLP analyse the financial remedies and divorce news and cases published in July.



Jessica Craigs, senior solicitor, and David Salter of Mills and Reeve LLP

This update is divided into two parts:

1. News in brief
2. Case law update

News in brief
This section of the update highlights those news items that will be of particular interest to practitioners who advise on divorce and financial remedy cases.

Joint statement regarding the key features of the Single Family Court
The President of the Family Division, Sir James Munby) and HMCTS London region released a joint statement regarding the proposed Single Family Court.   The term Single Family Court refers to the fact that, within the area for which the Designated Family Judge is responsible, the overarching principle will be that all the locations at which hearings take place will be managed and operated as a single family court.  There will no longer be 'care centres' and 'family hearing centres'.

For the full text of the joint statement click here

Government announces plans for marriage 'tax breaks' to be published shortly
In the 2010 Conservative manifesto contained proposals for tax breaks for married couples.

The aim was that wives and husbands who do not work and pay no income tax would be able to transfer part of their annual tax-free allowance to their spouse if their partner earns less than the higher rate of tax.

In 2010, the Conservatives indicated that it would make four million married couples and civil partners £150 a year better off.

It is understood that the proposals could be unveiled to Parliament at the time of the autumn statement, around the end of November 2013.

New CSA rules apply from 29 July 2013
The Child Maintenance and Other Payments Act 2008 (Commencement No 11 and Transitional Provisions) Order 2013 (SI 2013/1860) came into force on 29 July 2013. The Order brings into force provisions of the Child Maintenance and Other Payments Act 2008 which apply new rules for calculating child support maintenance to certain applications made on or after 29 July 2013. 

The 2008 Act amends the statutory scheme for calculation, collection and enforcement of child support maintenance which was originally set out in the Child Support Act 1991 and amended by the Child Support, Pensions and Social Security Act 2000.  The 2008 Act makes further amendments to the rules for calculating child support maintenance and effectively creates a third scheme. In December 2012, the Child Maintenance and Other Payments Act 2008 (Commencement No. 10 and Transitional Provisions) Order 2012 (SI 2012/3042) brought the majority of the amendments made by the 2008 Act into force for new applications made on or after 10 December 2012 where there were four or more children.

The majority of the amendments made to the new calculation rules were brought into force on 29 July 2013 for those new applications made on or after 29 July 2013 which relate to two or three qualifying children with both the same person with care and non-resident parent, where there is no existing case with the same person with care and the same non-resident parent.

The Order can be found here

Contempt proceedings by police dismissed over alleged forced marriage
The Telegraph reported that Mr Justice Holman rejected an application by Bedfordshire Police for a mother and aunt to be committed for contempt of court for breaching a forced marriage protection order.

The judge said that the police force did not have the power to bring contempt proceedings in a civil court and urged the Government to strengthen the law on preventing forced marriage.

The newspaper says that the girl went to police for help a year ago and told officers that her family had threatened to send her overseas to marry and warned that she would be shot if she refused.  She was made the subject of a forced marriage protection order, which prevented her from traveling abroad and banned her mother from arranging a marriage or enlisting someone else's help to arrange it. However, earlier this year she was married in the UK.

Officers issued contempt proceedings against the mother and aunt, who denied breaching the order.

Click here to read the article in full

Holman J warns divorcing couple against 'financial suicide'
A couple who have spent a quarter of their combined wealth in legal proceedings, have been urged to resolve their differences by a High Court Judge in order to avoid financial suicide.

A summary of the facts with a link to the judgment is given in the case law update below.

IFS and Marriage Foundation disagree as to whether 'marriage is good for children'
The Institute for Fiscal Studies (IFS) will outline research suggesting marriage does not improve a child's outcomes.

In their paper 'Is marriage good for children? Outcomes for children born to married and cohabiting couples' – the authors Ellen Greaves, Alissa Goodman, Claire Crawford and Rob Joyce, of the IFS, suggest that policies that encourage marriage would have a small impact, if any, on children's development.

Harry Benson of The Marriage Foundation, founded and chaired by High Court judge, Sir Paul Coleridge,  disagrees with their findings of the paper on many levels and comments:

"What really matters is whether couples stay together as a couple."

"Our previous research has shown that 93 percent of couples who remain together until their children are in their mid-teens are married. Just 18 percent of all couples with children aged 0-15 years old are still together but unmarried."

Marriage (Same Sex Couples) Bill receives Royal Assent
The Marriage (Same Sex Couples) Bill has received Royal Assent and is now law. The Bill, as enacted, has been published and is here.

The third reading which took place on 15 July 2013 had all changes approved by the House of Commons.

Malaysian wife claims that '£500 million' divorce should be heard in England
The wife of Dr Khoo Kay Peng, said to be one of Malaysia's wealthiest businessmen, has brought proceedings in the High Court to establish that the English courts have jurisdiction to hear her application for financial relief. Dr Khoo wants the case to be heard in Malaysia.

Dr Khoo's lawyers have argued that Ms Chai's divorce petition constitutes a "radical departure" that would enhance "the ill-gotten reputation of this country for being the divorce capital of the world".  Both parties have accused the other of forum shopping to their advantage.

Mr Justice Coleridge declined to make a ruling and adjourned the case for a fuller hearing.

Judicial Working Group publishes recommendations to assist with expected surge in litigants in person
Under the chairmanship of Mr Justice Hickinbottom, the Judicial Working Group on Litigants in Person, has produced its first report.

According to the Government's own figures, following the changes which came into force on 1 April 2013, 623,000 of the one million people who benefit from Legal Aid every year will now be denied access to this aid. Consequently, a substantial rise in the number of litigants in person is predicted.

The Working Group sets out the key issues that litigants in person present for the courts and tribunals, as a basis for recommending measures to help address those issues.

The report recognises that one of the fundamental challenges for judges, particularly in the civil courts, is how to give legitimate assistance to litigants in person while remaining fair to represented parties.

The final part of the report briefly addresses the impact of vexatious litigants. This part of the report contains a recommendation that judges should be strongly encouraged, through appropriate judicial leadership channels, to deal proactively and robustly with vexatious litigants, in particular by declaring appropriate claims and applications "totally without merit" and through the use of orders restraining individuals from issuing and pursuing claims.

Case Law Update

Tattersall v Tattersall [2013] EWCA Civ 774
The appellant husband (Mr Tattersall) appealed to the Court of Appeal against a financial provision order made by HHJ Wright in December 2012 following his divorce from the respondent wife (Mrs Tattersall).

The parties were in their mid-thirties and had married in September 2000 before separating in December 2010. They had one child (E) who was three-and-a-half and lived with Mrs Tattersall pursuant to a residence order made in December 2011.  Mr Tattersall claimed, at the time of the hearing, that he was actively seeking residence, however he was not yet having any contact.

Mrs Tattersall was a university researcher with a gross annual salary of £28,000.  Mr Tattersall was a University clinical lecturer in obstetrics and gynaecology. He previously earned approximately £75,000 p.a., but had reduced his hours, apparently to avoid working weekends in order to see E. His net monthly income had reduced from £4,000 to £2,400.

The parties owned five properties with a total net equity of £217,000. There was accrued rent of £8,000. Mr Tattersall was living in one of the properties, a two-bedroomed flat. Three of the other properties were let. Mrs Tattersall was living in rented accommodation.

In addition to the above, Mr Tattersall had modest investments of approximately £10,546 and a pension of £42,626.  Mrs Tattersall's pension was worth £23,250.

The parties had agreed to deal with the difference in pension entitlement by adjustment in relation to the rest of their capital. Both parties had some debts and Mrs Tattersall had outstanding legal costs.  Mr Tattersall had acted in person throughout the proceedings at first instance so had not accrued any legal costs.

The judge decided that Mrs Tattersall was likely to continue earning at the same rate for the next few years. Further Mrs Tattersall would not be attributed any rental income as she would need to buy a property and would have to sell any rented properties she owned, in order to do so. She determined that Mr Tattersall's wish to see E did not preclude him from working some weekends and that he could quickly return to his higher income.

The judge at first instance ordered Mr Tattersall to pay global periodical payments of £1,070 per month, index-linked, at least until E started secondary school. Her calculation was based on Mrs Tattersall purchasing a property costing £250,000 with a mortgage of £100,000 costing around £500 per month. She divided the capital in the proportions 30 per cent to Mr Tattersall and 70 per cent to his wife. Mrs Tattersall would receive £163,000 in total. Mr Tattersall would keep the flat he lived in, which had net equity of £27,200. He would also retain his savings of £10,500 and receive £35,000 from the sale of one of the other properties.

The judge declined to make a Mesher order because she considered there was sufficient available for both parties' needs to be met.

On appeal Mr Tattersall submitted that the judge had (1) erred in overlooking the fact that Mrs Tattersall's childcare costs would decrease when E started school; (2) failed to base her judgment on his reduced salary without overtime; (3) erred in making a periodical payments order because Mrs Tattersall intended to rent a home and would have her income boosted by rent from two properties which she would not be selling; (4) erred in failing to make a Mesher order.

Appeal dismissed.

(1) The issue of childcare costs had not been advanced before the judge, nor had the question of the subsidy available to Mrs Tattersall for nursery provision after age 3. When E started school, Mrs Tattersall would need to make provision for school holidays and the periods before and after school. The judge could not be criticised for assuming that childcare costs were not likely to reduce significantly before E started secondary school (see paras 34-35 of judgment).

(2) The working pattern that was involved when Mr Tattersall was formerly earning a higher salary was not set out in the appeal documentation or the material presented to the court below. However, the judge had obviously formed the view from the evidence she had heard that it was not necessary for Mr Tattersall to work every weekend to earn the higher salary. She had been in a position to assess the evidence of both parties and to form a view about his earning capacity. It did not seem to have been suggested to her that there was any cap on H's earnings and it was not surprising that she found that Mr Tattersall could earn £75,000 per annum gross. The exercise of providing for the needs of both parties and E was not an easy one as resources were 'relatively tight' (para 41). The judge accepted that Mrs Tattersall's earning capacity was likely to remain at its present level until E was older. It followed that Mr Tattersall was the only one of the parties who had the capacity to earn more and thus ensure that the family's needs were met. The judge had not been wrong to make those findings (paras 36-42).

(3) There was no reason to suppose that Mrs Tattersall would not buy a property, as the judge had anticipated she would, utilising the capital from the sale of the rented properties. There was therefore no question of her having a rental income (paras 43-45).

(4) The judge's approach to the division of capital had been within her discretion. In accordance with her duty under s.25(1) of the Matrimonial Causes Act 1973, her first consideration had been the welfare of E.  E's needs could not be satisfied unless her mother had access to more than half the family resources. She had not ignored Mr Tattersall's needs, but had satisfied herself that he could continue to live in his current accommodation and could afford to pay his mortgage and other expenses if he reverted to his former working pattern.

Whilst some judges might have made a Mesher order, but the judge had not been plainly wrong. She had not referred to either S v B (Ancillary Relief: Costs) [2004] EWHC 2089 (Fam),  or B v B (Mesher Order) [2002] EWHC 3106 (Fam),. However, she had spoken of Mrs Tattersall's responsibility for the day-to-day care of E, Mr Tattersall's higher earning capacity in the foreseeable future, and the potential for conflict. She must have had those authorities in mind, S v B and B v B applied (paras 49-54).

Chaudhary v Chaudhary [2013] EWCA Civ 758
Appeal against a finding that there was no beneficial interest in a property where the appellant had contributed a sum at the time of its purchase.

Mr Chaudhary was the son of Mr Chaudhary senior by marriage before Mr Chaudhary senior married Mrs Chaudhary (the appellant).

On 20 June 1996, Mr Chaudhary bought a property (40 Sunnyside Road, Ilford), registered in his sole name, for Mrs Chaudhary (the appellant), his father (Mr Chaudhary senior) and their three children to live in.  The purchase price was £65,000.   At the time, Mr Chaudary senior and his wife were unable to obtain a mortgage to buy their own property.

The property was funded by a loan totalling £59,850 from a Building Society.  The balance of the purchase price (8%), which consisted of a deposit of £5,000 was provided by Mr Chaudhary senior and Mrs Chaudary.

It was agreed between Mr Chaudhary and his father (Mr Chaudhary senior) that Mr Chaudhary would be their landlord but his father expressed a hope that he would be able to buy the property in the future. Mr Chaudhary senior subsequently died and Mrs Chaudhary and her children remained living in the property, not paying rent and fraudulently claiming housing benefit.

At first instance, the judge had to decide:

1. whether Mr Chaudhary was entitled to possession of the property;

2. whether Mr Chaudhary was entitled to rent arrears;

3. the Part 20 claim brought by Mrs Chaudhary, asserting that Mr Chaudhary had no right to claim possession of the property because she was, subject to the rights of the mortgagee, the person with sole beneficial interest in the property;

The judge held that Mrs Chaudary had no beneficial interest in the property under either a constructive or a resulting trust and that there was no proprietary estoppel in her favour.  It was found that the £5,000 was akin to an arrangement fee. Mrs Chaudhary was liable to pay rent and was ordered to pay rent arrears.  

Mr Chaudhary's claim for possession was rejected on a technical basis of the invalidity of the notice served pursuant to s21(4)(a) of the Housing Act 1988.

Mrs Chaudhary appealed two points: 1) the finding that she had no beneficial interest in the property; and 2) if found to have a beneficial interest, the effect this would have on the claim for rent arrears. 

On appeal, Mrs Chaudhary's counsel submitted that the judge was wrong to hold that she had no beneficial interest in the property due to the fact that they had directly contributed £5,000 towards the purchase price.  At pargraph 22, Lord Justice Aikens summarises:

"Mr Upton [counsel for the appellant] submits that it is clear on the evidence that Mr Chaudhary senior and Mrs BC did provide the sum of £5,000 towards the purchase price.  Therefore, in the absence of any express finding of fact that this was intended as a gift to Mr Chaudhary, he submits that the judge should have concluded that this transfer created a resulting trust in favour of Mr Chaudhary senior and Mrs BC to the extent of that contribution to the purchase price, viz 8 per cent, which, upon Mr Chaudhary senior's death became a resulting trust in favour of Mrs BC alone"

The Court of Appeal found that the appellant did have an 8% beneficial interest in the property on the following basis:

i) There was no evidence upon which to base the finding that the £5,000 was akin to an arrangement fee and accordingly that finding was set aside.

ii) There were no findings made by the trial judge as to Mr Chaudhary's and his father's intention as to whether the £5,000 was a gift or a deposit.

iii) As a result Lavelle v Lavelle and others [2004] EWCA Civ 223 applied. Namely where there is no evidence of the intention with which the transfer is made, the law applies presumptions. Where there is a close relationship between transferor and transferee, a presumption of advancement will apply. The court must look for the subjective intention of the transferor.

iv) On the balance of probabilities, it was the subjective intention of Mrs Chaudhary and her husband that the £5,000 was their contribution to the purchase price and would stand as credit when they came to buy the property. The £5,000 was for their benefit and not a gift to Mr Chaudhary

Accordingly, they had an 8% beneficial interest in the property.

Mrs Chaudhary failed in her argument that Mr Chaudhary should account to her 8% per cent of the rent and profits of the property from when it was purchased and any such sum found due should be set off against the judgment for rent arrears. There was no claim for such an account in the pleadings. Mrs Chaudhary would have to apply to the county court for such a claim, although the Court of Appeal questioned her ability to pursue such a claim in light of her criminal behaviour (fraudulent claims for housing benefit on the property) and the time that had elapsed.

M v S [2013] All ER (D) 286 (Jun)
The parties were married in August 2007. In January 2008, they began living together at the husband's parents' address. In September 2008, the wife moved into another property owned by a company.  The property was purchased using the father's money.  The husband continued to live with his parents.

The wife's argued that the move was part of a longer term plan for the couple to live together. The husband contended that the wife had moved in unilaterally when he and his parents were out of the country and that she had had no permission to do so.

In July 2011, the wife petitioned for divorce and decree nisi was pronounced in November 2011. The wife applied for financial relief whilst remaining at the property. In February 2012, the husband's father, via the company, served a notice to quit on the wife.  The wife applied for a property adjustment order in respect of the property. An OS v DS hearing was conducted in order to determine the preliminary issue of whether the husband had any interest in the property.

The husband pursued the argument that he never had any beneficial interest in the property.  The property was held by the company for his father, who had provided the purchase price long before the marriage, or even the relationship. The husband relied on both documentary and sworn evidence. The wife contended that the husband had always told her that he owned the property and that it was to be their matrimonial home and that the family had created documents for the purposes of the case and in order to defeat her claim. The court considered evidence of the husband's medical condition, namely, high functioning asperger's syndrome and depression.

The court ruled that it was impossible to consider the issues in isolation from the husband's mental condition. The husband may well have given the impression that he was the owner of the property and that it would become the matrimonial home. That was part and parcel of his grandiose presentation and the wife had not been unreasonable to believe him. However, there was a seamless and clear paper and evidential trail leading to the purchase of the property by the company using the father's money. The steps involved in the purchase had been standard and properly taken. There was no evidence of fraud or forgery.

It was held that the husband's father was, and always had been, the beneficial owner of the property. The wife's claim had no prospect of success and would be struck out.

Sekhri v Ray [2013] EWHC 2290 (Fam)
The husband and wife met through an online dating agency in December 2008 when each was in their mid thirties. They were each highly intelligent, very well educated, energetic, successful and ambitious professional people. The husband was and is a successful international lawyer and litigator and a partner in a world class American law firm.  The wife was and is a pediatric anesthetist, a Fellow of the Royal College of Anesthetists, working at Great Ormond Street Hospital and within reach of becoming a consultant in a leading London Hospital.

By April 2009 the relationship had developed and they were clearly contemplating a move to Singapore.  They became engaged in June and married in December 2009 with a son born to them in December 2010. Their marriage had deteriorated significantly by August 2011 with intense and aggressive arguments between them. They did not separate completely until the wife wrongfully removed their son from the former matrimonial home in Singapore and returned with him to England in September 2012.

On 20 August 2012 the wife issued a petition for divorce in the Principle Registry of the Family Division in London whilst still living in Singapore.

The combined expenditure of the parties in legal costs has been over £860, 000 a significant portion of which has related to litigation regarding the son.  At a hearing on 15 May 2013, Mr Justice Holman 'begged these parties to resolve their differences' (para 3).  Neither party was present on 15 May 2013, both being in Singapore but they say the order and the transcripts of the judgment.

There was very little dispute about the income or the assets but there was an obvious litigation risk for each party as to the outcome of the jurisdiction. H sought to litigate and obtain a divorce in India. W believed she would receive more financial provision in the UK than India. The disputed issues were in regard to domicile and jurisdiction. The husband acknowledged in the course of his oral evidence that the battleground as to jurisdiction was motivated by his "perception as to the pay-out". 

On the date of the petition, both parties were and recently had been habitually resident in Singapore. The wife alleged that both, or alternatively, at least one, of them were domiciled in England and Wales on the 20 August 2012. The husband very strongly denied that either of them was domiciled in England or Wales on 20 August 2012.  The burden of proof was on the wife.  The wife's domicile of origin was admitted as being Indian.  She therefore had to prove that she later acquired an English domicile of choice.  The wife also had to prove that the husband's domicile of origin was English; or, if not, that he later acquired an English domicile of choice.  If she proved this, the burden shifted to the husband to prove that such domicile was lost when the parties moved respectively to Singapore.

The standard of proof of disputed fact is the balance of probability.

Mr Justice Holman examined closely the husband's domicile of origin and domicile of choice (at paragraphs 13 – 30)  He deduced, that, based largely on the domicile of the husband's father, in August 2012, the domicile of the husband was English and has remained as such until present. In addition, he found that the wife acquired an English domicile of choice well before December 2008 and that she never abandoned this. It was held that each party was domiciled in England and Wales on 20 August 2012 and as such the High Court of Justice (Family Division) has the jurisdiction to entertain the petition. 

At paragraph 5 of his judgment, Holman J comments,  "That they have already committed nearly one-quarter of that wealth to highly charged litigation and an atmosphere of intense emotion day after day in the courtroom merely serves to underline the tragedy".

The finances are yet to be resolved.

NP v KRP [2013] EWHC 694 (Fam)
Application for a declaration of non-recognition, under section 55 of the Family Law Act 1986, of a marriage conducted in India. Application dismissed.
The husband and wife were married in India in 2003.  On 25 June 2009 the wife applied for a declaration of non-recognition pursuant to s55 Family Law Act 1986 (FLA 1986) of a "panchayat" divorce registered in Gujarat, India on 13 September 2005 in respect of the marriage.

Mrs Justice Parker performed a thorough examination of a number of disputed areas of evidence; examination of the law of this jurisdiction and of the Republic of India; and expert evidence on Indian Law.

Both the husband and wife originate from 'panchayat: a class of "dalit" caste in Gujarat, India.  The husband was born in Kenya but was brought up in India from the age of 7.  He came to the UK in 1978.  The wife, now 32, was born and brought up in rural Gujarat. 

A marriage was arranged between the husband and wife.  The wedding took place in the Temple and was registered with the local register office.  The marriage was consummated.  The husband arranged for and sponsored the wife's entry to the UK on a two year spousal visa.

On 13 September 2005 whilst both husband and wife were visiting India, the Registrar in Chikli in Gujurat witnessed and registered a deed of divorce and both parties signed this document.  That was the only undisputed and documented event concerning the divorce in India.  However, the facts leading up to, and surrounding, this even were all matters of dispute between the parties.

The husband had subsequently remarried.   The wife contended that the divorce should not be recognised on public policy grounds.  Although by the end of the proceedings she had conceded that the divorce was obtained in 'other' (non-judicial) proceedings for the purposes of the FLA 1986, Parker J, having heard extensive evidence and argument, ruled on the issue.

The wife contended that the husband had engineered the divorce without her knowledge and consent and with the assistance of others, that she was tricked into attending a venue that may have been the Registrar's office and had signed the papers not realising what they were.  This, she argued, was done to avoid potentially costly divorce proceedings in England after difficulties arose in the marriage and that the husband had done so knowing that a divorce would mean she could not renew her spousal visa to remain in the UK.

The husband's case was that it was the wife who sought the divorce and she had instructed her lawyer to prepare the deed of divorce and he had simply gone along with it.  He suggested that her motive for doing this was that she was having an affair with a young Sikh builder.

The judge concluded that neither party was wholly truthful in their account of what happened, both had exaggerated and embellished their case, and that this was relevant to the issues she had to consider.

These were lengthy and procedurally complex proceedings.  In the judgment the judge summarises the different stages of the proceedings in some detail.

The stages are broken down as follows:

1.  The litigation history (paragraphs 23 – 37)

2.  The background, the evidence and some conclusions (paragraphs 38 - 85).  The judge reviews in some detail the factual history of the case and the evidence she has heard.  She considers what she finds to be the 'flaws' in that evidence.

3.  Mr Desai's evidence (paragraphs 86 – 98).  Mr Desai was the advocate who prepared the divorce deed on the instructions of the wife.  The wife denied ever having seen him before which the judge found to be 'another attempt by the wife to undermine the crucial evidence as to what happened at the registration'.

4.  Events after the wife returned to England (paragraphs 99 – 104)

5.  Conclusions (paragraphs 105).  In summary, the judge concluded that the husband instigated the divorce.  The wife assented to the divorce and facilitated it by instructing Mr Desai.  Her father knew about the process and must have known about the divorce registration.  There was a family meeting at which the wife's father was present when the divorce was approved.  On the balance of probabilities, the judge found that the wife was not present at such a meeting.  The divorce was validly registered by the registrar and the husband did not expect W to challenge the divorce and had consequently remarried.

The judge then went on to summarise at paragraph 106 the evidence of Professor Menski, the expert instructed by the wife to report to the court on issues of Indian family law.  His evidence was essentially that this was a typical customary panchayat divorce, was valid in that there was no requirement for legal proceedings, that the involvement of community members helped to validate the divorce and that the customary divorce would not be readily challengeable in India.

Finally the judge at paragraphs 107 – 116 considered the applicable law under the Family Law Act 1986.  The wife relied on s.51(3)(c) FLA 1986 to argue that it would be 'manifestly contrary to public policy' to recognise this divorce.  Section 51(3)(a) allows for refusal of recognition if steps were not taken to make one party aware of the nature of the divorce procedure that was taking place.  Parker J summarised the test (at para. 119) as being "essentially whether to recognise the divorce offends against substantial justice.  I accept that the test must be narrowly interpreted and stringently applied". 

Parker J concluded that this was a non-judicial divorce.  The essential requirements of a panchayat divorce had been adhered.  The fact that the wife may not have been present at an earlier community meeting was not relevant in a jurisdiction where notice and participation are not prerequisites to a valid procedure.  The participation of community members and the registrar satisfied the requirement that community members endorse the divorce and are involved in the process.

Parker J stated that the public policy argument was the most difficult to resolve.  The wife's case relating to fraud, deception, lack of knowledge and pressure were rejected by the judge.  Whilst the wife may have been reluctant, she had not proved her case relating to specific duress plus she had been untruthful in her evidence.  Therefore, W had not proved her case as far as s.51(3)(c) was concerned.

At paragraph 131, Parker J states that "delay was also important in this case" and was relevant to the public policy issue.  The wife would not have challenged the divorce had she obtained leave to remain in the UK.  She had not challenged it immediately and consequently the husband had remarried in the meantime, under the impression that the wife had accepted the divorce.  He and his new wife had been entitled to rebuild their lives on the basis that their marriage was valid and to now treat that marriage as invalid would result in havoc to the husband and his family.