England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		03/06/2015

Mr Justice Mostyn :


 


1. In this case the applicant seeks that the decrees nisi and absolute of divorce issued by the High Court of Malaya at Shah Alam on 1 April 2014 in favour of the respondent husband be refused recognition in England and Wales. In my judgment the only basis on which she needs to mount her claim is under section 51(3)(a) of the Family Law Act 1986. As I will explain, I will grant the applicant's plea. It is therefore not necessary for me to consider whether recognition could be refused on grounds of public policy under section 51(3)(c) on the facts of this case, notwithstanding that there are questionable aspects concerning the contents of the Malaysian petition.
2. Both the applicant and the respondent act in person. I heard the applicant directly, and the respondent by telephone from Malaysia, on 16 April 2015 and directed that further documentary evidence be filed and final submissions made in writing. That has all happened and this is my judgment on the applicant's application.
3. In this judgment I will refer to the applicant as the wife and to the respondent as the husband.
4. Section 51(3)(a) provides:

51 Refusal of recognition

(3) Subject to section 52 of this Act, recognition by virtue of section 45 of this Act of the validity of an overseas divorce, annulment or legal separation may be refused if—

(a) in the case of a divorce, annulment or legal separation obtained by means of proceedings, it was obtained—

(i) without such steps having been taken for giving notice of the proceedings to a party to the marriage as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken; or

(ii) without a party to the marriage having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as, having regard to those matters, he should reasonably have been given; …

5. In Duhur-Johnson v Duhur-Johnson [2005] 2 FLR 1042 at para 44 Mr Jeremy Richardson QC set out six propositions where he distilled the relevant law as follows:

"First: The power contained in section 51(3) as a whole provides for wide judicial discretion. The provisions need not be exercised if the interests of the respondent spouse (as opposed to the petitioning spouse) are met by other means (An example of this is El Fadl v El Fadl). It seems to me that it is important to emphasise that those interests must be safeguarded. I would anticipate that this approach would only be adopted where the respondent spouse has no option under the overseas divorce law but to submit to the divorce. The important point to note is that the judicial discretion is wide and the applicability of the section will vary depending on the many and varied circumstances of each case.

Second: When considering section 51(3)(a)(i) a judge must ask whether reasonable steps have been taken by the petitioning spouse to notify the respondent spouse of the divorce proceedings in advance of them taking place.

Third: In answering that question the judge must look at all the circumstances of the case and the "nature of the proceedings" in the overseas jurisdiction.

Fourth: Whether reasonable steps to notify the other party have been taken is to be judged by English standards having regard to the nature of the overseas proceedings.

Fifth: Whether reasonable steps have been taken is a question of fact in each case (it must also be remembered that there are cases where reasonable steps have been taken but they were unsuccessful or, in rare cases, where it is entirely reasonable for no steps to have been taken).

Sixth: It is important to note that whether the respondent spouse has notice of the proceedings is not the issue. It is whether the petitioner spouse has taken reasonable steps to notify the other party. The focus of enquiry is upon the actions of the petitioning spouse not simply a question of whether the respondent spouse knew about the proceedings."

6. These propositions were adopted and applied by Holman J in Olafisoye v Olafisoye [2010] EWHC 3540 (Fam) and Peter Jackson J in Ivleva v Yates [2014] EWHC 554 (Fam).
7. It is curious that in none of these cases was reference made to the corresponding provision of Article 22(b) of Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility ("B2R"). This provides that :

"A judgment relating to a divorce, legal separation or marriage annulment shall not be recognised: …

(b) where it was given in default of appearance, if the respondent was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable the respondent to arrange for his or her defence unless it is determined that the respondent has accepted the judgment unequivocally."

8. In my judgment the explication of section 51(3) must surely be informed by the judicial interpretation of Article 22(b). It would be bizarre if totally different rules applied to an application seeking non-recognition of a divorce granted in, say, Cyprus to one granted in Malaysia. It seems to me that Mr Richardson's fourth proposition should be taken to mean English standards including European standards applicable in the UK.
9. In MD v CT [2014] EWHC 871, I sought to analyse Article 23(c), which is in identical terms to Article 22(b). I pointed out in para 10 that there were no reported cases about Articles 22(b) or 23(c) but there were an appreciable number under the corresponding provision, Article 45, of Council Regulation No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) and its predecessor, Article 34 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ("the Judgments Regulation").
10. After considering the relevant authorities I concluded that a defendant who is resisting the recognition of an EU divorce or parental responsibility judgment must prove three things:

i) First, the defendant must show that the divorce was obtained in default of his or her appearance. This does not mean merely that the defendant was physically absent. If the defendant has already chosen to take part in the proceedings by defending them or even by challenging the jurisdiction, he or she may be said to have already "appeared" and thus not be in default of appearance.

ii) Second, the defendant must show that he or she was not served in sufficient time and in such a way as to enable him to arrange for his or her defence. Even where there has been formal valid service the court of registration is entitled to examine whether on the ground and in the real world there was actual service of the originating application or an acceptable substitute sufficiently far ahead of the hearing to enable the defendant to arrange for his defence. In an exceptional case the court can so conclude.

iii) Third, it must be shown that the defendant has not accepted the divorce judgment unequivocally. I observed that it is hard to imagine a state of affairs where this comes into play. It is irrelevant under B2R if the defendant failed to commence proceedings to challenge the judgment when it was possible for him or her to do so (in contrast to the Judgments Regulation) or if he or she had concealed his or her whereabouts from the person who instituted the proceedings in the overseas court (in contrast to the Luxembourg Convention).

11. It is with these principles in mind that I turn to the facts of this case.
12. The first matter of which I take note is that Malaysian divorce law is very similar to our own. There must be a petition for divorce alleging irretrievable breakdown. The petition must state if there are any overseas proceedings in being which may affect the validity or subsistence of the marriage. The petition must be served personally although the court has power to authorise substituted service or to dispense with service altogether. The petition cannot be listed for hearing until the time for acknowledging service has expired, although this can be abridged. The petition must be proved before a judge in court in much the same way that petitions used to be proved here before the advent of the special procedure in the mid 1970s, although the petitioner's evidence in support of the petition may be given by affidavit. There is a period which must elapse before a decree nisi can be made absolute (here it is 6 weeks and I assume the same in Malaysia) although this period may be abridged by the court.
13. The husband and wife were married on 18 July 2001 in Singapore. Their daughter was born on 6 December 2005. At some point they came to this country. Their final matrimonial home was a flat in Westminster. The parties separated on 3 November 2010. The wife issued a petition for divorce in the Clerkenwell and Shoreditch County Court on 23 November 2010. It was based on the husband's conduct. In accordance with the usual practice the behaviour was very lightly pleaded. The wife merely referred to frequent lengthy arguments. The petition was unquestionably duly served on the husband. A notice issued by the court stated that it was posted to the husband on 7 December 2010. The husband signed the statement of arrangements for the child on 11 January 2011 and an amended version on 21 February 2011. It is thus apparent that he was fully aware of and engaged in the divorce proceedings.
14. The wife applied for directions for trial under the special procedure and filed her affidavit of proof of the petition. It is on this occasion that the court considers whether the petition has been proved. It is very rare for the court to reject a petition as being insufficiently pleaded. Yet that is what happened here. On 11 April 2011 the court wrote a letter to the wife saying that the allegations of behaviour were insufficient. However the petition was not dismissed. The wife was left with a choice. She could have asked that her petition be listed for hearing under the old procedure, or (more likely) have amended her petition to plead the husband's behaviour more fiercely. In fact she did neither.
15. On 15 November 2013 the wife emailed the husband's solicitor in Malaysia asking what his address was for service of divorce and related papers. I deal with this in more detail below.
16. On 30 January 2014 the wife filed an amended petition for divorce in the Clerkenwell and Shoreditch County Court. This amended petition alleged desertion by the husband for at least two years. It stated that there were no other proceedings in England and Wales or elsewhere with reference to the marriage. The wife honestly believed that to be true as she was wholly unaware of the steps that the husband had taken in Malaysia.
17. Meanwhile, on 9 December 2013 the husband, in reaction to the wife's intentions as prefigured in her email of 15 November 2013 had set in train steps to obtain a high-speed and completely secret divorce in Malaysia. On that day he applied to the High Court of Malaya at Shah Alam for an order exempting him from mandatory pre-action mediation; such an order was granted on 17 December 2013. The husband's petition to that court is dated 16 January 2014 although it bears a date stamp from the court of 26 February 2014. In para 8 it states "there are no proceedings continuing in any country outside Malaysia which are in respect of the marriage or are capable of affecting its validity or subsistence". That was not true. Had the truth been stated it is reasonable to suppose that the court in Malaysia would have adopted a very different course. It sought a divorce based on irretrievable breakdown evidenced by two years' separation.
18. The husband made an affidavit on 19 February 2014 in support of his application that service of the petition on the wife be dispensed with. He did not ask for an order for substituted service, for example by sending a copy to the wife's last known address, or that notice of the proceedings be given by a newspaper advertisement. He simply asked that service be waived altogether. His affidavit is quite short and I set out the relevant passages, as translated from the original Malay, in full.

"3. I verily state that after I was married to the Respondent, we cohabited at a few different places and the last address was at Flat 2, 31 Moreton Street, London SW1R 2NZ in which we cohabited until on or about December 2010. Thereafter, we lived separately and had planned for a divorce.

4. In about October 2011, due to economy recession in United Kingdom ("UK"), I was forced to go back to Malaysia. At that material time, Respondent refused to come back to Malaysia.

5. After I came back to Malaysia, we had discussed about divorce but eventually, my solicitors and I had difficulties communicating with the Respondent as she infrequently replied to emails.

6. Presently I had started this divorce proceedings, I was advised by my solicitors that the cause papers of this proceedings must be served on the Respondent. However, I verily believe that we would have difficulties in serving the cause papers.

7. I verily state that after living separately with the Respondent, I do not know her address and even if we communicate, we only use tele-communication (sic).

8. Although we have a matrimonial house in UK, the Respondent is not living in the said house. As far as I know, the said house is let to a third party.

9. I verily stated that the Respondent is still in UK and I do not have the Respondent's last known address. My solicitors had written to the Immigration Department of Malaysia for record of movement of entry/exit of the Defendant. A copy of my solicitor's letter dated 21/10/2013 is annexed herewith and marked as Exhibit "A".

10. According to the reply of Immigration Department of Malaysia dated 28/10/2013, the last date of the Respondent exiting from Malaysia was on 14/12/2011 and thereafter, no entry into Malaysia by the Respondent. A copy of the letter from Immigration Department of Malaysia is annexed hereto and marked as Exhibit "B".

11. Besides that, my solicitor had on 15/1/2014, sent e-mail to the Respondent for her last address. However, to date, there is no reply from the Respondent. A copy of the said e-mail is annexed hereto and marked as Exhibit "C".

12. I verily believe that the Respondent intentionally not replying to my solicitors. Therefore, I verily believe that I have no other alternatives but to apply for dispensation of service of cause papers.

13. Based on the above grounds, I respectfully pray for an order in terms of the said Application."

19. Exhibit C in fact contained two emails sent by the husband's solicitor in Malaysia Miss Fu Yet See to the wife's Hotmail address. The first is dated 29 November 2013 and is headed "Proposed Divorce Proceedings between Lee San Chee and Shelley Liaw Shu Ling". The email simply says "Hi, We are still waiting for your reply in order for us to advice (sic) Mr Lee. We wish to know what is your intention next proceeding from here so we can give proper advice to Mr Lee. Thanks!" The email dated 15 January 2014 merely said "Hi Ms Shelly Liaw, We would appreciate if you could kindly let us have your current UK address so that we can send you official letter. Thanks!" It is true that there was no reply to that email.
20. The email dated 29 November 2013 was part of a chain initiated by the wife on 15 November 2013. The title or heading was her wording and the proposed divorce proceedings to which she was referring were English proceedings. On 15 November 2013 the wife asked Miss Fu Yet See to state the husband's correct address for service of divorce papers and related papers. On 18 November 2014 Miss Fu Yet See wrote a careful reply in which she stated that she "had yet to receive" the husband's instructions to accept service. She did not however give an address at which service could be effected. On that same day the wife repeated her request. On 20 November Miss Fu Yet See again deflected the question and avoided giving an answer. Instead she enquired as to the nature of the documents so that she could advise the husband accordingly. For some reason the wife did not give that information although she had made it clear 5 days earlier that the papers were divorce documents. The reply sought in the email of 29 November 2013 was to the question asked on 20 November namely: what is the nature of the documents you want to serve? It is disturbing that this email chain was not referred to in, or exhibited to, the husband's affidavit of 19 February 2014.
21. The following cannot be gainsaid:

i) The husband was speaking to the wife by telephone but did not inform her that he was filing a divorce petition.

ii) The email dated 15 January 2014 to the wife did not bounce. It may not have been replied to but there was no reason to suppose that it had not been received. Miss Fu Yet See had had ample email communication with the wife prior to 15 January 2014.

iii) No copy of the petition was sent by mail to the wife's last known address.

iv) A scanned copy of the petition was not emailed to the wife's Hotmail address.

v) No proposal for substituted service was advanced.

vi) As a result the wife was wholly oblivious to the Malaysian proceedings.

22. On 26 February 2014 the application to dispense with service came before Judge Vernon Ong sitting in the High Court of Malaya at Shah Alam. The husband was represented by Miss Fu Yet See. Judge Ong granted the application. Specifically he ordered that:

"Service of a copy of the Petition dated 16 January 2014, Sealed Notice of Trial and all relevant cause papers on the Respondent shall be dispensed pursuant to Section 12(10) of the Divorce and Matrimonial Proceedings Rules 1980 AND IT IS ORDERED that the cost of this application shall be borne by the Petitioner."

23. On the day before this hearing, 25 February 2014, the amended petition was sent by post by the Clerkenwell and Shoreditch County Court to the husband at the address given for him in Malaysia. There is no reason to suppose that it did not arrive. Yet the husband did not amend his divorce petition in Malaysia or otherwise inform the High Court of Malaya at Shah Alam of this development.
24. The petition was listed for hearing on 1 April 2014 before Judge Ong. The husband was represented by Miss Fu Yet See. The husband proved the petition by means of an affidavit dated 24 January 2014. That affidavit did not correct the falsity in para 8 of the petition. Judge Ong found the petition proved and pronounced Decree Nisi. Remarkably Miss Fu Yet See orally applied that the waiting period before decree absolute could be sought be abridged to nothing. That was granted, and the decree nisi was made absolute the same day. In a letter dated 29 April 2015 Miss Fu Yet See explained the basis on which this application was made. She wrote:

"We write to confirm that above divorce petition was heard by the Honourable Judge, Vernon Ong on the 1st of April 2014. On the same day, Decree Nisi was granted and we had orally applied for Decree Nisi to be made absolute immediately on the ground that you and the Respondent were separated since 2010 and Respondent was permanently based in the United Kingdom. Accordingly, Decree Nisi was made absolute immediately."

25. Generally speaking there has to be a good objective reason why the waiting period should be abridged. The waiting period was introduced for a reason. It was to allow the Queen's Proctor to intervene to show that the decree nisi had been wrongly obtained (see section 8 Matrimonial Causes Act 1973). It also allows the respondent to the proceedings to intervene to seek to set aside the decree if he or she had not for one reason or another been served with the proceedings. Expedition in this jurisdiction must be sought on grounds of urgency such as an impending death or an impending birth of a child. I am assuming that the law of Malaysia is the same. An application for expedition on the basis advanced by Miss Fu Yet See would not be granted here.
26. The effect of the abridgement was that the wife was deprived of the hiatus during which she could have applied to set aside the decree nisi and to defend the proceedings, or alternatively to seek that they be stayed in favour of this jurisdiction as the one where proceedings were already pending and which was the forum conveniens.
27. The husband did not inform the wife of these events on 1 April 2014 or in the ensuing days. Rather he waited until 19 August 2014, when he emailed the Decree Absolute to the wife's Hotmail address. By that point the wife had applied for directions for trial in her English proceedings. In the absence of an acknowledgement of service from the husband the wife obtained an order on 30 May 2014 deeming service to be effected 8 days after the petition had been sent by email to the husband and to his solicitor. On 4 August 2014 the Clerkenwell and Shoreditch County Court found the petition proved and listed the cause for pronouncement of decree on 1 September 2014, and decree nisi was duly pronounced on that day. The wife then notified the Clerkenwell and Shoreditch County Court about the Malaysian Decree Absolute. The County Court stayed the proceedings and transferred them to the Central Family Court.
28. In July 2014 the wife had filed Form A activating her claim for ancillary relief. On 1 December 2014 a deputy district judge sitting at the Central Family Court listed the hearing before me to determine (in effect) whether the Malaysian divorce should be refused recognition.
29. I have no hesitation in concluding that the wife was not given reasonable notice of the Malaysian proceedings or a reasonable opportunity to participate in them. She was given no notice or opportunity at all. The divorce in Malaysia was given in default of her appearance. She was not served in sufficient time and in such a way as to enable him to arrange for her defence. She has not accepted the Malaysian decrees at all let alone unequivocally.
30. In my judgment the husband and his solicitor engaged in sharp practice in obtaining the divorce in Malaysia. A petition was filed which was knowingly false. The case that the wife had effectively disappeared and that there was no alternative means of effecting service on her was again knowingly false. The reasons for expediting Decree Absolute were spurious and again represent a deliberate misleading of the Malaysian Court: the true reason was to prevent the wife from applying in the waiting period to set aside the decree nisi.
31. Having reached the threshold conclusions in para 29 above it is then a matter for my discretion whether I refuse recognition. Militating against refusal is the fact that it is undesirable to have two different decrees absolute in different places in relation to the same marriage. A decree absolute is a matter of status and it is undesirable that the parties should have inconsistent decisions as to when their marriage was finally ended. If I decline to refuse recognition then the Malaysian Decree Absolute is entitled to be recognised under section 46(1) Family Law Act 1986. The consequence would be that the decree nisi pronounced by the Clerkenwell and Shoreditch County Court on 1 September 2014 would be set aside and the wife's amended petition dismissed. Before the advent of Part III of the Matrimonial and Family Proceedings Act 1984 this would have meant that the wife could not claim ancillary relief. However Part III allows the court to award financial relief following divorce, provided that leave to pursue that remedy has been granted. I have no doubt that a court would on the facts of this case grant leave. So it might be argued that there is no practical reason to refuse recognition.
32. On the other hand there is the compelling argument that to decline to refuse recognition in this case would be grossly unjust and would in effect reward dishonesty and sharp practice. It would send out a signal that conduct such as I have described is tolerable. As Lord Hewart CJ in R v Sussex Justices [1924] 1 KB 256, 259 famously stated "justice should not only be done, but should manifestly and undoubtedly be seen to be done". No-one could conclude that justice had been done or been seen to be done were I to decline to refuse to recognise this Malaysian divorce.
33. I therefore refuse recognition of the Malaysian decrees nisi and absolute dated 1 April 2014.
34. I lift the stay on these proceedings and authorise the wife to proceed to make absolute the decree nisi dated 1 September 2014.
35. It is highly regrettable that the consequence of the conduct of the husband and his solicitor is that there are now inconsistent decisions about the status of these parties in the two jurisdictions. I direct that a copy of this judgment be supplied to Judge Vernon Ong at the High Court of Malaya at Shah Alam.