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Marriage & Divorce

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  • An appeal concerning the extent of the obligation upon the court in England and Wales to enforce a foreign order in relation to children. The two children, a girl aged 16 and a boy aged 13, had lived in England and Wales for most of their lives and had been habitually resident here for at least six years. The judgment under appeal concerned applications by their father to enforce orders of the Spanish court granting him custody, and an application by the mother, made when the English court had jurisdiction, for an order that the children would live with her. The English court had refused recognition of the Spanish orders on the basis that they were irreconcilable with its own order for the children to live with their mother. In the view of Peter Jackson LJ, the judge had been right to find that she had the power to make welfare orders on the basis that the children were habitually resident in England and Wales and that the Spanish court was no longer seised. She was also right to not accept the father's argument that the recognition and enforcement proceedings should take priority. He expressed some reservations about her approach to the welfare assessment, but was not persuaded that her ultimate decision was wrong, and any procedural irregularity, whether or not it was described as serious, had not led to injustice. Moylan and Phillips LJJ agreed. The appeal was dismissed. Judgment, 22/01/2021, free
  • The mother was English, and the father was Libyan, with a British passport. They had three children, aged 3, 5 and 6. The mother had left Libya in 2018 but the children had remained there. She now applied under the inherent jurisdiction for orders that the court should protect the children, invoking "the ancient parens patriae jurisdiction": the Crown's obligation to protect those who are unable to protect themselves. She had not raised this in previous unsuccessful proceedings, relying instead on habitual residence and/or Article 10. Had this been a case about money, Mostyn J said, the failure to advance the parens patriae case first time round would not have been justified and therefore the current case would have stopped for Henderson abuse. However, because this was a case about children, he decided that this should instead be considered as part of the overall discretionary exercise as to whether the jurisdiction should be exercised. He found that the circumstances in this case were not sufficiently compelling to require the court to exercise its protective jurisdiction. The evidence showed that an order for repatriation which sought the assistance of the Libyan authorities would be futile. It did not show there had been a major deterioration in the security situation in Libya since the relocation to Libya, to which the wife had consented, nor since the previous order had been made, such that would justify it being set aside. The mother's application was dismissed. Mostyn J urged the father to allow the mother to have meaningful contact with her children. Judgment, 20/01/2021, free
  • The judge had set aside the decree absolute, rescinded the decree nisi, and set aside the certificate of entitlement to a decree made in divorce proceedings between the husband, as petitioner, and the wife, as respondent. The husband had given the date of separation as 2006, which the judge had found to be fraudulent. The husband's appeal from this decision raised the issue of the circumstances in which a court had the power to set aside a decree absolute and, in particular, whether the power existed when it was alleged that a petitioner had advanced a false case when obtaining an undefended divorce as per s 1(1) and (2) of the Matrimonial Causes Act 1973. Moylan LJ stated that the result of the appeal might have been different, had the judge set aside the decree absolute on the basis only of fraud as to the date of separation, but, in his view, the judgment made it clear that the decree was also set aside because of procedural irregularity: the wife's application to rescind the decree nisi had been pending. The judge was plainly entitled to decide to set the decree aside, and also to rescind the decree nisi, set aside the certificate of entitlement and dismiss the petition. Having concluded that the husband's case in support of his petition was false, there was no reason to permit the petition or the orders to stand. The judge had been well placed to determine the wife's application and the orders which he made had been justified by his factual conclusions. Singh LJ and Popplewell LJ agreed. The appeal was dismissed. Judgment, 20/12/2020, free
  • The petitioner was seeking a divorce from the respondent. The parties disagreed over whether an alleged marriage ceremony in the 1980s had ever taken place, and whether it should be recognised as a valid marriage in this jurisdiction. This hearing concerned procedural difficulties stemming from a valid marriage certificate not being attached to the petition. HHJ Moradifar noted that there were many reasons why a valid marriage certificate might not be available, and the FPR clearly contemplated such a situation and provided for it. There was nothing in the FPR or the authorities cited which provided for there being no requirement to file an acknowledgement of service or an answer where a petitioner had not filed a valid marriage certificate. The filing of an answer had a material impact on how a divorce petition would be treated by the court, and not filing one was neither inconsequential nor trivial. Where no answer had been filed and served, the petitioner would be permitted to apply for a decree in divorce and associated costs. Given the respondent's continuing failure to engage with and address the procedural defects in his case, the balance of fairness, justice and proportionality demanded that the petitioner’s application be granted. The case would be listed for a pronouncement of a decree nisi. Judgment, 20/12/2020, free
  • The claimant and the first defendant had lived together for most of the time between 1990 and 2011, although the first defendant denied that they had been in a committed relationship. Upon being asked to leave, the claimant had asserted a beneficial interest in the property in which they lived, and an agreement had been reached whereby he would be paid £250,000 in return for withdrawing that claim. The money in question had not been paid, but the first defendant argued that the conditions necessary for payment had not been met. Deputy Judge Robin Vos found that, taking all the evidence into account, it was clear that the two of them had a long-term, committed relationship which went well beyond being good friends, but the claimant had not had a beneficial interest in the property. The agreement made was binding and valid, but the defendant's obligation to pay was conditional on him receiving a gift or inheritance from his father, and this had not happened. The claims were thus dismissed in their entirety. Judgment, 17/12/2020, free

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