I recently finished representing a Husband involved in contested divorce proceedings in England. The parties had married in Lebanon, married again in England, and then got divorced in Lebanon (in accordance with the proper legal procedure there). The wife, some years after the divorce in Lebanon, issued divorce proceedings in England, seeking a divorce in respect of the English marriage, using the erroneously obtained English Marriage Certificate.
The Wife’s solicitor valiantly attempted to persuade the Court that this case contained ‘novel’ points of law, including the ‘dual’ marriage situation and the impact on the parties arising from this. Ultimately, the Wife’s application was dismissed at the initial case management conference, and she was ordered to pay the costs of my client. Whilst not ‘novel’, the case involved some interesting points:
- Would the Court recognise the Lebanese Divorce?
- How did the second English Marriage fit into all of this?
Recognition of an overseas divorce
Will the English Court always recognise the validity of an overseas divorce? The short answer is not always. The legal framework is contained in the Family Law Act 1986 (“FLA”).
Under S46(1) FLA, a divorce obtained overseas by way of proceedings will be recognised as valid if:
- It is effective under the law of the country in which it is obtained; and
- At the relevant date (the date of the divorce), either party was:
- Habitually resident in that country;
- Domiciled in that country; or
- Was a national of that country.
Under s46(2) FLA, a divorce obtained overseas by way of non-proceedings will be recognised as valid if:
- It is effective under the law of the country in which it was obtained; and
- At the relevant date:
- Each party to the marriage was domiciled in that country; or
- Either party was domiciled in that country and the other party was domiciled in a country under whose law the divorce is recognised as valid; and
- Neither party to the marriage was habitually resident in the UK for one year preceding the relevant date.
When will the Court refuse to recognise to an overseas divorce? This is found under S51(3) FLA.
An overseas divorce may be refused under S51(3)(a), in the case of divorce by way of proceedings, if it was obtained:
- Without notice having been given to a party which should have reasonably been taken (having regard to the nature of the proceedings and all the circumstances); or
- Without a party having been given (for any reason other than lack of notice) an opportunity to participate in the proceedings which should have reasonably been given.
In the case of divorce proceedings obtained via non-proceedings, a Court may refuse recognition under S51(3)(b) if:
- There is no official document certifying that the divorce is effective under the law of the country in which it was obtained; or
- Either party was domiciled in another country at the relevant date, there is no official document certifying that the divorce is recognised as valid under the law of the other country.
- an overseas divorce is manifestly contrary to public policy.
Whether a Court will give recognition to an overseas divorce will be dependent upon the above statutory framework, and if it was obtained via proceedings (judicial or other proceedings) or via non-proceedings.
To be a proceedings divorce there must be a degree of formality and at least the involvement of some agency, whether lay or religious, of or recognised by the state, having a function that is more than simply probative or some form of state machinery to be involved.
The Court was referred to the case of El-Fadl v El-Fadl [2000] 1 FLR 175. In this case the facts were that the husband had divorced his wife by talaq in Lebanon 16 years earlier and no notice had been given as none was required. The Court determined that this was a ‘proceedings’ divorce due to the nature of the process which took place. In answer to the question as to whether the English Court should refuse to recognise the divorce under its discretion under s.51 of the Family Law Act 1986, the answer was no. This was on the basis that the wife had known of the divorce for some time and only challenged the divorce when the husband ceased paying maintenance. Lebanon was the natural forum, and the talaq, without notice, was a prescribed form of divorce in Lebanon; notice would have availed her of nothing and the principle of comity (respecting an overseas’ Court’s jurisdiction) was important.
How did the second English Marriage fit into all of this?
The Court was referred to the case of X v Y [2020] EWHC 1116 (FAM). The facts of this case were that 2 parties married in Spain on 25 May 1993. There was then an English marriage that took place on 31 May 1994 (resulting in a marriage certificate). The divorce application, made in England, was based on the English marriage. The Husband sought a declaration to amend the Decree Absolute and Decree Nisi (as it was then) to reflect the correct marriage, the Spanish marriage.
The Court held “They were divorced by a valid order of this court made absolute on 13 March 1997. The impact of the order that I will make today is simply, but importantly, to record that the marriage that was dissolved on that day was the true legal marriage between the couple, namely that celebrated in Madrid on 25 May 1993, and not the subsequent English marriage a year later which had no legal impact on their status. The purpose of today’s order is to resolve and put right that which should have been the case all the way along.”
Conclusion
Where a divorce takes place overseas, the English Court may recognise it if the factors in the Family Law Act 1986 are met. In my case, the Court accepted the submissions presented on behalf of my client. The case was dismissed at the first hearing, and resulted in a costly exercise for the Wife. It reflects the importance of taking specialist advice, particularly when there is an international element involved in a case.
This is a very technical and complex area of law. If you find yourself in a similar situation, Rayden Solicitors are specialist family law solicitors who can provide specialist advice tailored to your circumstances, please contact us to discuss your situation in confidence.
