B e f o r e :
|TOM THEO HERMENS||Petitioner|
|- and -|
|ELISAVETA NIKOLAEVA HERMENS||Respondent|
|THE QUEEN'S PROCTOR||Intervenor|
(Incorporating Beverley F. Nunnery & Co.)
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This transcript is subject to Judge's approval
THE RESPONDENT did not attend and was not represented.
MR SIMON MURRAY appeared on behalf of the Queen's Proctor.
Crown Copyright ©
MR JUSTICE BAKER:
"1. On 3rd March 2007, the petitioner, Ton Theo Hermens, was lawfully married to Elisaveta Nikolaeva Hermens (hereafter called 'the respondent') at the Registry Office in the District of Chilterns Hills in the County of Buckinghamshire …
"2. The petitioner and respondent last lived together as husband and wife at Suite 102, 19-21 Crawford Street, London, W1H 1PJ.
"3. The Court has jurisdiction under Article 3.1 of Council Regulation [Brussels IIa] on the following grounds: the petitioner and respondent are both habitually resident in England and Wales.
"4. The petitioner is, by occupation, retired and resides at Suite 102, 19-21 Crawford Street, London, W1H 1PJ. The respondent is, by occupation, unemployed and resides at Suite 102, 19-21 Crawford Street, London, W1H 1PJ."
The petitioner continues later, as follows:
"10. The said marriage has broken down irretrievably.
"11. The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent."
There then followed particulars of behaviour on which the petitioner relied. It is unnecessary, in order to deal with this application, for me to go into those particulars at all.
"Respondent: Elisaveta Nikolaeva Hermes, Suite 102, 19-21 Crawford Street, London, W1H 1PJ. The petitioner's address for service: Tom Theo Hermens, care of Divorce Online, Alexander House, 19 Fleming Way, Swindon, SN9 2NG".
Beneath those provisions, there is a signature that is said to be the signature of the petitioner and a date, 10th February 2011.
"that on 11th March 2011, I was with the respondent, Elisaveta Nikolaeva Hermens, when she opened the divorce papers. Upon reading the divorce petition, she commented, 'So you want to divorce me.' Later she told me that it was 'important' that she 'go to Bulgaria quickly' and, when I refused to give her money, said, 'I will never sign any divorce papers'."
On the notice of application for deemed service, the petitioner again gives his address as being the "Suite 102" address beneath his signature.
"As I am often living between my Greece home, my caravan in the UK and my daughter's home in London, I require a UK address to receive my post. Thereby I have taken the services of a mail forwarding agency who have been given the address Suite 102, 19-21 Crawford Street, London, W1H 1PJ for all my post to be sent. All post received at this address are forwarded to me by the mail forwarding agency, Mailboxes Etc., to Greece or collected in person by myself or at times by the respondent. During our relationship, the respondent would use my UK address in order to send out letters …"
The petitioner proceeds to describe documents which he says that the respondent has received via that address, including documents relating to her immigration status.
"When I initially told the respondent I will apply for divorce, she warned me that she would never sign the papers to allow me to obtain a divorce. Therefore, I felt the safest option was to put down my address and ensure that I handed the papers to her upon receipt from the court. That way I could be sure that she received the papers."
"At the start of the divorce proceedings, I handed the respondent the divorce petition. Hereafter we did not speak of the divorce. I assumed that she may be in denial, but, given that she has been aggressive towards me and has an alcohol issue, I did not want things to become acrimonious. I did not detest the respondent but her behaviour followed excessive alcohol consumption. She clearly wanted to continue to use my address at Suite 102 to receive her correspondence and I did not prevent her from doing so as I did not feel it necessary."
"(1) Perjury without more does not suffice to make a decree absolute void on the ground of fraud.
(2) Perjury which goes only to jurisdiction to grant a decree and not to jurisdiction to entertain the petition, likewise does not without more suffice to make a decree absolute void on the ground of fraud.
(3) A decree, whether nisi or absolute, will be void on the ground of fraud if the court has been materially deceived, by perjury, forgery or otherwise, into accepting that it has jurisdiction to entertain the petition.
(4) A decree, whether nisi or absolute, may, depending on the circumstances, be void on the ground of fraud if there has been serious procedural irregularity, for example, if the petitioner has concealed the proceedings from the respondent."
On that occasion, the President observed that it was the third of those propositions which was determinative of the case.
" 94. I have to say that I am sceptical as to whether, even on his own evidence, the respondent can establish that he was ever habitually resident in this country. But even assuming that he can, I am persuaded by Mr Murray [counsel for the Queen's Proctor on that occasion, as he is today] that it cannot avail either the respondent or the petitioner. The fact remains that in this case, as in all the others, the English court was deceived into believing that, in this case, the respondent lived at Flat 201, and the decree nisi and decree absolute were procured by the use of a purported affidavit which, like the others, was in fact and in law a forgery. As Mr Murray succinctly puts it, the fact is that the false address was presented to the court. On that ground, as Mr Murray submits, the Queen's Proctor is entitled to the same relief in Rapisarda v Colladon AL11D00099 as in the other cases.
"95. Quite apart from that, there are other difficulties in Ms Villarosa's way [Miss Villarosa was counsel acting for both parties in the Rapisarda case]. The use of the wrong address was not, as Ms Villarosa would have it, a 'mistake'; it was deliberate. Moreover, even if I could in some way cure this defect in the petition it is far from clear that this could, without more ado, retrospectively cure the process culminating in the decree nisi and the decree absolute. And in any event, Leake v Goldsmith  EWHC 988 (Fam),  2 FLR 684, a very different case, does not assist Ms Villarosa, nor do two other cases to which reference was made, S v S (Rescission of Decree Nisi: Pension Sharing Provision)  IDS Pensions Cases 219 and Kearly v Kearly  EWHC 1876 (Fam).
"96. Ms Villarosa submits that the petitioner and the respondent were innocent parties, who did not collude or in any way take part in whatever fraud may have been committed by [the fraudsters responsible for orchestrating the fraud in the 180 cases]. I am prepared to assume in their favour that they were taken advantage of by others who were intent on making money dishonestly at their expense. But their plea of innocence will not wash. On the petitioner's own account, she must have realised that there was something distinctly odd about the affidavit she was being asked to sign. So far as the respondent is concerned his (admitted) signature to the acknowledgment of service faces him with a dilemma from which he cannot escape. If, as he says, he signed the form in blank, then he must take the consequences. If, on the other hand, it had been completed when he signed it, how can he explain the fact that his address is shown immediately below his signature as Flat 201 and not, as he had notified [the fraudster] by email on 1 February 2011, his true address in Bromley?
"97. Accordingly, in this case as in the others, the decree nisi and the decree absolute must be set aside as being void for fraud, and the petition must be dismissed."
"that in each case the underlying proceedings were tainted by deception in relation to the address of either the petitioner or the respondent, and the decrees, where decrees had been granted, were obtained by deception."