Mensah v. Mensah 2018 EWHC 484 (Fam)

Facts:

  • Both parties were French nationals. They married in 1988 and had two children, both adult. They owned a property in Paris. At the time of this appeal W was living in London and H, in Ghana.
  • W issued her petition for divorce in England in 2011. H was not served and no steps were taken to progress the petition at that time. Decree nisi and decree absolute were finally granted in 2016.
  • Before the decrees were granted in England, W issued another divorce petition in France in October 2012. Both parties attended an initial conciliation hearing in 2013. Divorce was granted by the District Court of Nanterre in 2015 in W’s absence, the French court having rejected W’s contention that it did not have jurisdiction to entertain her petition pursuant to the principle of lis pendens under article 19 of Brussels II Regulation (‘Brussels II’).
  • The French court dealt with financial matters and ordered the “liquidation and division of the asset interests of the spouses” and ordered H to pay W a lump sum of EUR 30,000 and to make monthly payments of EUR 450 towards the children until they reached 18, finished tertiary education or secured employment.
  • In January 2017, H sought recognition of the French divorce in England under Art. 21 of the Brussels II Regulation. W argued that the French divorce should not be recognised as the French decree of divorce was given in her absence and thus Article 22(b) of Brussels II applied.
  • H applied to set aside the English decree nisi and the decree absolute. He argued that they were a nullity as there was no subsisting marriage when they were granted.

 

Held, dismissing the appeal:

  • There was no ground for non-recognition on the basis of public policy under Article 22(a) of Brussels II as W wanted to be divorced;
  • There was no ground for non-recognition on the basis that divorce had been granted in W’s absence under Article 22(b) of Brussels II. The evidence demonstrated that W had sufficient notice of H’s summons in the French proceedings to arrange her defence, and that W had written to the French court on several occasions demonstrating that she was aware of the proceedings (citing in approval In Re D (A child) (Recognition of Foreign order) (Reunite Child Abduction Centre Intervening) [2016] 1 WLR 2469 as authority for the proposition that appearance does not just mean physical appearance but can also mean lodging of documents).
  • There was no basis for saying that the French divorce order should not be recognised in England because it was irreconcilable with the divorce decree in England under Art. 22(c) of Brussels II. By the time the decree was made in England, the marriage had already been dissolved in France.
  • Further, there were sound policy reasons for not allowing W to rely on the later English divorce decrees as creating an irreconcilable judgment in circumstances where she had not provided the English court with all the relevant information.
  • H’s application to set aside the decree nisi and decree absolute was therefore granted. The decrees should not and would not have been made had the English Court been fully informed about the French proceedings.