References: [2014] EWFC 35
Links: Bailii
Coram: Sir James Munby P FD
The court considered applications to set aside some 180 petitions for divorce on the grounds that they appeared to be attempts to pervert the course of justice by wrongfully asserting residence in order to benefit from the UK jurisdiction.
Held: It had been asserted that the English court had jurisdiction to entertain the petition in accordance with the Council Regulation on the basis that the petitioner was habitually resident and had been resident in England and Wales. In all but one case there was in fact no reason to think there had been any UK residence. The English court was deceived; the English court was induced by fraud to accept that it had jurisdiction to entertain the petition. It was apparent that an Italian had been offering a service providing UK divorces to Italian nationals.
Petitions not having reached the stage of decree had now been dismissed. The decrees must be set aside as being void for fraud. In each case the underlying petition must be dismissed. This is not a matter of judicial discretion; it is the consequence which follows inexorably as a matter of law from the facts as I have found them. It made no difference if one or other or both of the parties have re-married or even had a child.
Sir James summarised the law: ‘i) perjury without more does not suffice to make a decree absolute void on the ground of fraud;
ii) perjury which goes only to jurisdiction to grant a decree and not to jurisdiction to entertain the petition, likewise does not without more suffice to make a decree absolute void on the ground of fraud;
iii) a decree, whether nisi or absolute, will be void on the ground of fraud if the court has been materially deceived, by perjury, forgery or otherwise, into accepting that it has jurisdiction to entertain the petition;
iv) a decree, whether nisi or absolute, may, depending on the circumstances, be void on the ground of fraud if there has been serious procedural irregularity, for example, if the petitioner has concealed the proceedings from the respondent.’
Statutes: Domicile and Matrimonial Proceedings Act 1973 5(2), Council Regulation (EC) No 2201/2003, Matrimonial and Family Proceedings Act 1984, Family Procedure Rules 2010 7.5(1), Matrimonial Causes Act 1973 8
This case cites:
- Cited – Ali Ebrahim -v- Ali Ebrahim (Queen’s Proctor intervening) ([1983] 1 WLR 1336)
. . - Cited – Sheldon -v- Sheldon (The Queen’s Proctor Intervening) ([1865] EngR 180 (A), Commonlii, (1865) 4 Sw & Tr 75)
Practice. – Dismissal of Petition – No Evidence produced -The Queen’s Proctor intervened in a suit for dissolution in which the respondent did not appear, and alleged collusion and the petitioner’s adultery. No evidence being tendered in support of . . - Endorsed – Crowden -v- Crowden (The King’s Proctor showing cause) ((1906) 23 TLR 143)
The normal practice of the Queen’s Proctor is not to adduce evidence in support of the plea on intervening in a divorce petition, and there is no need for him to do so where there is no answer to the plea. . . - Endorsed – Clutterbuck -v- Clutterbuck and Reynolds (Queen’s Proctor showing cause) ([1961] 105 Sol Jo 1012)
The court considered the proper practice where the Proctor intervened in a divorce petition, but no answer was received from the parties. . . - Cited – Wiseman -v- Wiseman ([1953] P 79)
A decree absolute of divorce which would otherwise be void, will still be void even though one of the parties has subsequently remarried and had a child. . . - Cited – Bater -v- Bater CA ([1906] P 209)
The judgment of a divorce court dissolving a marriage is a judgment in rem, conclusively established the new status of the parties to the suit. A decree obtained in a foreign country by false evidence or by collusion in regard to the matrimonial . . - Cited – Lazarus Estates Ltd -v- Beasley CA ([1956] 1 QB 702, [1956] 1 All ER 341)
There was a privative clause in the 1954 Act. A landlord’s declaration under the Act that work of a specified value, supporting an increase in rent, had been carried out on leased premises, could not be questioned after 28 days of its service on the . . - Cited – Callaghan -v- Hanson-Fox (Andrew) ([1992] Fam 1, [1991] 2 FLR 519)
H sought to have set aside a decree absolute obtained on the petition of his now deceased wife on the ground of fraud, in that the petitioner had falsely sworn in her affidavit verifying the petition that the marriage had broken down irretrievably . . - Cited – Moynihan -v- Moynihan (No 2) FD ([1997] 1 FLR 59)
The Queen’s Proctor applied to have set aside a decree absolute of divorce obtained by fraud on the part of the petitioner, the by then deceased Lord Moynihan. The particulars set out in the petition were false in a number of material respects; the . . - Cited – S -v- S (Ancillary Relief: Consent Order) FD (Gazette 11-Apr-02, [2002] 3 WLR 1372, [2003] Fam 1, [2002] 1 FLR 992, [2002] IDS Pensions Law Reports 219)
An order for ancillary relief had been made by consent. Later the House of Lords issued a judgment which changed the law which had been the basis of the decision to accept the settlement. The wife now sought to set aside the consent order, and . . - Cited – Marinos -v- Marinos FD (Bailii, [2007] EWHC 2047 (Fam), [2007] 2 FLR 1018)
The court was asked as to points of both law and fact under Article 3 of Council Regulation (EC) No 2201/2203, commonly known as Brussels II (revised). The greek father and english mother and their children had lived in Greece and England. W began . . - Cited – Kearly -v- Kearly FD ([2009] EWC 1876 (Fam), [2010] 1 FLR 619)
. . - Cited – Leake -v- Goldsmith FD (Bailii, [2009] EWHC 988 (Fam), [2009] 2 FLR 684)
. . - Cited – V -v- V FD (Bailii, [2011] EWHC 1190 (Fam), [2011] 2 FLR 778)
The court was asked as to its jurisdiction to hear a divorce petition under the Regulation Brussels II Revised. . . - Cited – Tan -v- Choy CA (Bailii, [2014] EWCA Civ 251)
This appeal concerns the fifth indent of Article 3(1)(a) of the Regulation, which provides that ‘[i]n matters relating to divorce . . jurisdiction shall lie with the courts of the Member State (a) in whose territory . . the applicant is habitually . .