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J v J (non-recognition of overseas divorce) [2021] EWFC 43

Application by wife for non-recognition of Chinese divorce. Application dismissed

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The wife (W) is Polish, the Husband (H) Chinese.  They married in 2017.  There were no children.  Although H disputed it, the court found that their primary base during the marriage was the UK, and was satisfied that H was a man of considerable wealth running into many millions of pounds.  The couple had spent time in China for business purposes, and W was reasonably familiar with it.  W had played a significant role as chief scientific officer in H's business which had operations around the world.  The parties separated in 2019.  W was dismissed from her role and successfully brought a tribunal claim in this jurisdiction (although she had not received the awarded damages). She also instructed employment lawyers in China in 2019/20.  

W issued a petition for divorce in May 2019 in this jurisdiction by which time H was no longer living in the UK.  H evaded service and in August 2020 the court eventually deemed service and authorised W to apply for trial as an undefended case.  H accepted that he had been aware of the petition since early 2020.  W issued Form A in December 2019; H again evaded service.  There had been several court hearings in relation to the financial remedy proceedings and H filed a Form E that was "unacceptably bereft of detail".  Unfortunately no further steps were taken by the court on W's undefended divorce application. 

H filed for divorce in the Chinese court on 16 October 2019.  W was made aware of those proceedings on 20.April 2020.  Although W attempted to appoint a McKenzie friend to represent her in those proceedings, that was not accepted in the Chinese court.  In the event the Chinese court permitted the divorce on 14 December 2020 and the judgment was publicised on 27 December 2020, allowing 3 months for appeal.  W did not appeal.  Peel J acknowledged that had W's suit proceeded expeditiously she would likely have obtained a decree in this jurisdiction before H's Chinese decree

The matter came before Peel J on 8 February 2021 listed to deal with a wide range of applications made by W including maintenance pending suit, a legal services order; and freezing orders, joinder applications and third party disclosure in relation to a number of overseas companies that W alleged were controlled by H.  Both parties were unrepresented.  Just prior to that hearing, on the court's request in response to evidence from the parties referring to "ongoing proceedings in China" H disclosed the evidence of the final decree of divorce obtained in China.  W accepted that evidence.  As a result, W's divorce suit fell away and consequently her application for financial remedy and associated applications under the 1973 Act fell away.  At that hearing, Peel J asked W whether she wished to apply for a refusal of recognition of the Chinese divorce under s 51 FLA 1986 and she said yes.  The Judge therefore dispensed with service and adjourned that application, and the other applications to this hearing

The Judge observed that at the heart of the jurisdiction issue lay money.  It was common ground that W would likely receive no financial relief at all in China.  The Judge observed that in the circumstances W would be able to pursue a claim for financial relief in England and Wales after an overseas divorce pursuant to MFPA 1984.  There was thus little practical difference for W in terms of financial claims.  However the Judge considered that given a decree of divorce was a momentous thing, it was appropriate for the court to determine the non-recognition application on its own merits.

From paragraph 28 of the judgment, Peel J therefore considered s 51 FLA 1986 and the relevant case law in relation to non-recognition in the light of the evidence. 

S 51 (3) FLA 1986 provides that recognition of an overseas divorce may be refused if it was obtained without proper notice or if the respondent was not given opportunity to take part in proceedings, or if recognition was manifestly contrary to public policy

The court also noted the 2 stage test as set out in Olafisoye v Olafisoya [2010] EWHC 3540 (Fam).  First, the court must assess whether reasonable steps were taken.  If the court adjudges they were not, that opens the gateway to the second stage where the court should exercise discretion whether or not to refuse recognition, which should be done sparingly and with respect for the decisions of a properly constituted court in a foreign jurisdiction

While recognising the difficulties faced by a foreign national with no command of the language and limited resources particularly during the pandemic Peel J stressed that these problems without more were not sufficient to disentitle a petitioner from relying on a properly obtained divorce.  The Judge concluded that H had taken reasonable steps to notify W and she had reasonable opportunity to take part in proceedings.  In the circumstances W's application for non-recognition was dismissed. Her divorce suit and financial remedy application were also dismissed.  The Judge directed that if W were to make an application for leave under s 13 MFPA 1984 it should be listed before him.

Case summary by Martina van der Leij, Barrister, Field Court Chambers

For full case, please see BAILII