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Bikadi v Najafabadi [2013] EWCA Civ 1760

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Appeal which centred on the H's belated challenge to England being the correct jurisdiction for the divorce and the failure of an adjournment application based on the H's ill-health.

  • In brief: This permission to appeal hearing centred on two issues:-

    • the husband's ("H") belated challenge to England being the correct jurisdiction for the divorce (he favoured Iran); and 
    • the failure of an adjournment application based on H's ill-health.

    The parties were British Iranians. They had married in Iran in May 1978 but had been living in the United Kingdom since 1988. They had separated in 2008 and the wife's ("W") divorce petition was filed in July 2011. She also put in a petition in Iran in June 2012; this was on the understanding that English divorce orders were not recognised in Iran. 

    There were numerous applications and adjournments in the lead up to the pronouncement of the decree nisi; eventually, matters culminated in a three day trial in September 2012 which went part-heard due to H's ill-health. The hearing concluded in November 2012 with the decision being reached that the divorce could and should proceed in England and that H's late request for a stay in the proceedings should be refused. Decree nisi was duly pronounced. 

    At this juncture, it is relevant to point out two things:-

    • at the November hearing, H had, for the first time, applied for a stay of the English proceedings and disputed English jurisdiction on the basis of the ongoing Iranian divorce proceedings; and 
    • also at that November hearing, H had been represented by his McKenzie friend (who was in fact his new partner). H had not attended court during the morning session but had indicated he would attend in the afternoon to give evidence. However, it was said that when his partner contacted him to confirm the position, he was taken to hospital and consequently did not attend court. The trial nonetheless continued without him. 

    H sought to appeal. He submitted that:-

    • the recorder had been wrong to decline a stay of the English divorce proceedings under s. 5(6) and Schedule 1 paragraph 9 Domicile and Matrimonial Proceedings Act 1973 in favour of the Iranian divorce proceedings; and 
    • the recorder had also been wrong to refuse a further adjournment of the November 2012 hearing in light of H's health problems that day.

    H argued that the recorder had failed to give full and structured reasoning for her decisions. In particular he said that the recorder had been wrong to use the word "convenient" where the true test, set out in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, was what overall was appropriate (even though the statute itself uses the word "convenient"). He also argued that the recorder had erred when indicating that H had been out of time in his application for a stay in circumstances where H had learned of W's divorce proceedings in Iran only in October 2012.

    The Court of Appeal refused H's application on the grounds that both issues had been a matter for the recorder's discretion and she had produced a full and considered judgment. The appeal judges found the English divorce proceedings had been well and truly underway. Crucially, it was found that H had been very alive to the possibility of jurisdictional issues and had indicated as much in his acknowledgement of service in July 2011. Nonetheless, he had decided not to commence divorce proceedings in Iran at that time nor at any time before the hearing date itself (he had been advised that it would not be in his financial interests to do so due to the issue of the "mare" or "dowry" which he would have had to restore to W). H's delay in raising the jurisdictional issues had therefore not been because he had only recently learnt of the Iranian proceedings.  

    Insofar as the adjournment was concerned, the appeal judges noted that H had never provided any medical evidence to substantiate his alleged hospital visit, a letter provided by his GP a few days before the hearing was found to be "hesitant" in its expression and merely referred to the "possibility" of H not being able to attend the hearing and, having been involved in the case for some time, the recorder had found that H had been in part using his illness to further delay the proceedings.

    Read the full text of the judgment here


Published: 18/02/2014

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