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Home > Judgments

Botwe v Brifa [2021] EWHC 2307 (Fam)

A case determined in the High Court by Mr Justice Cobb highlighting the need for careful compliance with the provisions of the Family Law Act 1986 when it comes to overseas divorces to ensure that they are recognised in this jurisdiction and do not lead to ‘limping marriages’. The case was brought by an applicant wife, Ms Botwe, pursuant to the provisions of sections 51 and 55 Family Law Act 1986. The wife sought a declaration that she remained married to Mr Johnson Brifa (‘the husband’). The husband argued that the parties had legally divorced in Ghana and that that marriage should be recognised in this jurisdiction.

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In terms of the legal framework, Mr Justice Cobb first considered whether as a matter of fact a valid divorce had taken place in Ghana. Separately he considered if the divorce had been registered. If these facts were found, the court would go on to consider:

(a) whether this divorce was obtained by a "judicial or other process" (s. 46(1) and (2) and s. 54 FLA 1986);

(b) if it was not obtained by a "judicial or other process", whether the procedure effective to achieve a divorce in Ghana (s. 46(2)/(3)(b) and s. 51(1)/(2)/(3)(b) FLA 1986; and

(c) depending on whether the divorce was obtained by "judicial or other process", will the divorce be recognised in this jurisdiction. Relevant to this question will be consideration of where the parties were domiciled and/or habitually resident at the time of the alleged divorce (s. 46 & s. 52 FLA 1986).

In terms of background, the parties had married in accordance with customary tradition in Ghana on 4 March 2017. In accordance with tribal tradition, the marriage was validly conducted through families with the wife absent. There was no dispute over the validity of the parties' marriage. 

The husband asserted that the parties had divorced in accordance with customary tradition in Ghana on 25 August 2019. The wife asserted that the parties had not divorced in Ghana on this date (or at any time) and sought to pursue an application for divorce from the husband in this jurisdiction. It was the husband's case that the wife was seeking to assert that the parties had not divorced for immigration purposes.

Mr Justice Cobb heard oral evidence from both parties, the husband's mother and the wife's father (remotely from Ghana) and received expert evidence from Ms Charlotte Boaitey, a practising member of the English Bar and of the Ghanaian Bar.

Having heard the evidence, Cobb J was satisfied that as facts, a customary divorce did take place in Ghana in August 2019, followed by its registration, as alleged by the husband.

The court went on to find that while the customary divorce was obtained otherwise than by a procedure but was effective in Ghana to achieve a divorce in that jurisdiction. In respect of this last point, the court went on to consider the matters set out in s. 46(2) FLA 1986. The court concluded that it was likely that at the relevant time, both parties were domiciled in Ghana (section 46(2)(b)(i) FLA 1986). However, both parties were habitually resident in the United Kingdom throughout the period of one year immediately preceding 25 August 2019 (s. 46(2)(c) FLA 1986). Accordingly, the divorce obtained in Ghana in accordance with tribal custom on 25 August 2019 could not be recognised in England and Wales.

The court accordingly made a declaration that the English court would not recognise the divorce. While the parties were legally divorced in Ghana, they remained legally married in this jurisdiction. While Cobb J noted the undesirability of this determination, which creates what has been otherwise described as a 'limping marriage' (per Holman J in Olafisoye v Olafisoye (No.2)(Recognition) [2010] EWHC 3540 (Fam) and Mostyn J in Liaw v Lee [2015] EWHC 1462 (Fam)). The outcome of this application was that the wife was entitled to pursue her petition for divorce in this jurisdiction.


Case summary by Rachel Cooper, Barrister, Coram Chambers

For full case, please see BAILII