No dice without Decree Nisi: J v J (Non-Recognition of Overseas Divorce) [2021] EWFC 43.

Background

 

  • Peel J (‘the judge’) dealt with a raft of applications made by the Applicant Wife (‘W’) against the Respondent Husband (‘H’) including, inter alia, for W’s English divorce suit to be progressed and for the English court to not recognise any decisions of the Chinese courts, as well as MPS, LSPO and various freezing orders against overseas companies connected to H.

 

  • W (34) is of Polish origin whilst H (45) is of Chinese origin. They cohabited in 2016, married in 2017 and separated in 2019. They had no children. W’s case was that they lived in England, whilst H insisted that they had lived in China during the marriage.

 

  • W was highly educated and had co-founded a business with H. W’s case was that H had later stripped out the assets from the UK-based part of this company, as well as being personally seriously violent against her. W claimed that H had had her dismissed from the company, as a result of which W was awarded over £100,000 at the Employment Tribunal. After supporting W for some months during which she rented in London, H cut off all support in October 2019.. H’s minimal disclosure did not prevent the judge from being satisfied that he was a man of “considerable wealth running into many millions of pounds”. The evidence for this included a set of consolidated company accounts showing turnover of $86m and H’s admission in his Form E that he had supported W with £900,000 pa for her personal spending. The parties were both litigants in person and the judge noted a “palpable antipathy” between them

 

  • W had issued her divorce petition in May 2019. H had evaded service of this, having moved back to China. Following deemed service in August 2020 there was considerable delay caused, it seems, by the court at Bury St Edmunds transferring the suit to the CFC, from whence it was transferred to the High Court to join the financial remedies application, where it languished in spite of W’s attempt to progress it. The judge acknowledged that, but for this unexplained delay, W would likely have obtained a decree in England.

 

 

  • At an earlier hearing in February 2021 the judge had found that W’s applications fell away as a result of H having stolen a march on W and obtained a decree of divorce in China, which W accepted to be the case. W’s divorce suit and financial remedies application could not rest on these foundations. Thereafter W sought to apply under s.51 FLA 1986 for a refusal of recognition of the Chinese divorce, which was dealt with at the subsequent hearing.

 

Issues

 

  • The judge had to decide whether or not to recognise the Chinese decree pursuant to s.51(3) FLA 1986, which provides that a court may do so where:

 

  1. the divorce has proceeded without proper notice to the respondent;
  2. the respondent has not had an opportunity to take part in the proceedings; or
  • to recognise the divorce would be contrary to public policy.

 

  • The judge noted the dicta of Holman J in Olafisoye v Olafisoye [2010] EWHC 3540 (Fam), in which he set out a two-stage test:

 

  1. First, the court must make an assessment whether such steps were not taken as should reasonably have been taken. If this is the case, the second stage applies;
  2. The court may use its discretion to decide whether or not to refuse recognition, albeit with due respect for comity.

 

  • The judge also noted the authorities’ emphasis, including in Eroglu v Eroglu [1994] 2 FLR (per Thorpe LJ) 287, on the need to exercise refusal on the grounds of public policy, “very sparingly”

 

Held

 

  • The judge held that W’s application for non-recognition should be dismissed. Accordingly, her financial remedies application was also dismissed.