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Divorce Procedure

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  • The applicant sought a declaration that she was currently married to the respondent, and brought her application pursuant to the provisions of ss 51 and 55 of the Family Law Act 1986. The parties agreed that they had been married in 2017. The questions included whether the parties had gone through a customary divorce procedure in Ghana, at which neither party was present, as claimed by the husband, and whether that divorce would be recognised here. Cobb J was satisfied that a customary divorce and its registration had taken place in Ghana. However, both parties had been habitually resident in the United Kingdom throughout the year immediately preceding the Ghanaian divorce ceremony (s 46(2)(c) FLA 1986), and so the divorce could not be recognised in England and Wales. The wife was entitled to pursue her petition for divorce in this jurisdiction. Judgment, 19/08/2021, 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  • The judge had set aside the decree absolute, rescinded the decree nisi, and set aside the certificate of entitlement to a decree made in divorce proceedings between the husband, as petitioner, and the wife, as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 Attorney General appealed from a decision to pronounce a decree nisi of nullity following a marriage ceremony which the parties had known was of no legal effect. The petitioner and respondent had reached an agreed settlement, so arguments on matters of law were made on behalf of the first intervener, a petitioner in separate nullity proceedings. The issues were whether there could be ceremonies or other acts which do not create a marriage, even a void marriage, within the scope of section 11 of the Matrimonial Causes Act 1973; and if there could be, whether this had been such a ceremony, currently described as a non-marriage, or whether instead, as Williams J had decided, it had created a void marriage. Sir Terence Etherton MR (the Master of the Rolls), King LJ DBE and Moylan LJ set aside the judge's order as there was, in this case, no ceremony in respect of which a decree of nullity could be granted pursuant to the provisions of section 11. The judge's approach was supported by neither the European Convention on Human Rights nor the United Nations Convention on the Rights of the Child 1990. Judgment, 28/05/2020, free
  • The husband alleged fraud and sought to set aside a decree absolute and a financial consent order, both from 2011, in proceedings involving what was described as "frankly shambolic and unacceptable case preparation", leading to the loss of a full court day. Mr Recorder Allen QC found as a fact that the husband had been unaware of the divorce and financial proceedings instigated by the wife. Although Mr Recorder Allen QC had made a finding of fraud, the divorce petition was voidable rather than void, and he declined to set it aside in this case. The financial consent order was set aside and the matter would be listed for a new directions hearing. Judgment, 19/03/2020, free
  • The Attorney General appealed from a decision to pronounce a decree nisi of nullity, following an Islamic marriage ceremony which the parties had known was of no legal effect. The couple had reached an agreed settlement, and so took no part in the appeal. A petitioner in separate nullity proceedings had been given permission to intervene, as were the campaign group Southall Black Sisters. The first issue was whether there are ceremonies or other acts which do not create a marriage, even a void marriage, within the scope of section 11 of the 1973 Act. The court concluded that there could be such ceremonies, and that they would not entitle the parties to a decree of nullity. The second issue was whether the ceremony in this case had been a non-marriage (or as the court preferred, non-qualifying ceremony) or a void marriage. A non-marriage would create no separate legal rights while a decree of nullity with regard to a void marriage would entitle a party to apply for financial remedy orders under the 1973 Act. Sir Terence Etherton MR, King LJ and Moylan LJ concluded that this had been a non-qualifying ceremony. The judge's order was set aside as there had been no ceremony in respect of which a decree of nullity could be granted. Judgment, 17/02/2020, free

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