The court was asked to consider the recognition here of a foreign divorce.
Held: Holman J said: ‘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]).
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.
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.’
Holman J
[2010] EWHC 3540 (Fam)
Bailii
Family Law Act 1986
England and Wales
Citing:
See Also – Olafisoye v Olafisoye FD 19-Feb-2010
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Cited by:
Cited – Liaw v Lee (Recognition of Divorce) FD 3-Jun-2015
The applicant sought that the decrees nisi and absolute of divorce issued by the High Court of Malaya at Shah Alam in favour of the respondent husband be refused recognition in England and Wales.
Held: The application was granted: ‘the husband . .
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Updated: 12 July 2021; Ref: scu.430383 br>