England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
ON AN APPEAL FROM DISTRICT JUDGE ROBINSON

		Royal Courts of Justice Strand, London, WC2A 2LL
		09/03/2018

Mrs Justice Theis DBE:

Introduction

1. This matter concerns an appeal by Doh Victorine Piot Mensah (the wife) from the order of DJ Robinson dated 10 March 2017. That order registered pursuant to the provisions of Council Regulation (EC) No 2201/2003 (BIIR) an order of the Nanterre District Court in France, by which the parties were divorced, dated 18 February 2015. The respondent to the appeal is Dominique Mensah (the husband), who lives in France.
2. The appeal was listed for a day on 7 February 2018, following a day of oral submissions judgment was reserved until today. The wife did not have legal representation during the hearing, but it was clear through her command of the documents and the way she made her written and oral submissions she understood the issues in the case and was able to get across what she wanted to say. Ms Perrins represented the husband and provided a helpful chronology and skeleton argument, as well as admirably clear oral submissions.
3. The key issue in the appeal is whether the English court should recognise the divorce between these parties which was granted by the District Court of Nanterre, France in 2015.
4. The position is complicated by the fact that the wife obtained an English decree of divorce after the divorce in France. The English Decree Nisi was granted on 14 January 2016 and Decree Absolute 7 April 2016. The husband says he was not served with any of the papers in the English divorce proceedings. On 7 December 2017 the papers were disclosed to him from the English divorce file. The wife says he knew about the English divorce proceedings. The husband's position is it is clear from considering the documents the wife did not make full disclosure to the English court about the divorce proceedings that had taken place in France. He has made an application to set aside both the English Decree Nisi and Decree Absolute on the basis they are a nullity, as there was no subsisting marriage to dissolve at the time those decrees were made.
5. The wife's case is that she disputes she had proper notice of the French divorce, the husband was aware of the English divorce proceedings and she says the English Decrees should be allowed to stand.

Relevant Background

6. The husband is 64 and the wife 58. They married in the Ivory Coast in 1988. There are two children of the marriage, both now adult. Both parties have French Nationality.
7. The husband has worked in several jurisdictions through his job and the family has lived in London and Paris. In 2011 the husband moved to work in Ghana. At around that time the marriage broke down, the wife remained living in an address in London that had been the family home. The husband remained working abroad and did not live in or regularly visit England again, and only visited Paris for specific reasons, such as the divorce hearing in 2013 and medical treatment in 2014. The husband returned from Ghana to live in France in May 2015.
8. The wife issued a divorce petition in England in 2011, the husband was not served (although there is a dispute between the parties as to whether he was sent an email with the divorce petition attached), no steps were taken to progress it in 2011 as the decrees were not granted until 2016. The wife subsequently issued a divorce petition in France on 23 October 2012. I will consider each set of proceedings in turn.

French Divorce proceedings

9. Following the wife issuing her petition in France on 23 October 2012 a non-conciliation order was issued in France on 30 April 2013 and, the husband submits, the French divorce is effective from that date. Both parties attended that hearing, both parties were legally represented, the wife's address was confirmed as being in Paris (the Paris property) and the husband's in Ghana, the Paris property was confirmed as being the marital home and was 'allocated' exclusively to the wife.
10. Following this hearing the wife did not continue to instruct her French lawyer and did not progress the proceedings in France. The wife wrote to the French court on 15 May 2014 complaining that the husband had not responded to her messages about negotiation saying she was 'ready to finish this procedure in France, but only on the condition that the husband will be ready to work with me on the project of an amicable divorce as you requested'.
11. The wife emailed the husband on 18 July 2014 stating she had 'decided now to file the divorce in the family court in London' and asking for his address or his solicitor's address 'to send you the divorce petition' stating that she will 'write to the French Judge to inform her of my decision'.
12. The husband issued his own summons in the French proceedings which was sent to the wife at the Paris property. There is an email from the wife to the husband on 10 August 2014 stating that she had been informed by their son, who lived in the Paris property, that a bailiff came to hand over a 'divorce petition from you [H]'. She asked for it to be sent to her London address. In the email she also stated, 'you will receive shortly my petition as soon as I have the return of the documents being translated at the request of the English court'. The husband denies receiving this email.
13. On 27 August 2014 the husband's French lawyer wrote to the wife at the Paris property enclosing documents from the husband relating to a summons issued by him and urging the wife to get legal representation.
14. On 29 August 2014 the wife wrote to the husband's French lawyer stating that divorce proceedings had been issued in England in July 2011. The husband's lawyer has subsequently written stating she denies receiving this letter or being made aware of any change of address by the wife.
15. In a further letter from the wife to the French court dated 9 September 2014 she stated her son had informed her about a letter from the French court dated 25 August 2014 received at the Paris property relating to a conference before the President on 2 October 2014. She sets out in that letter why she refutes the jurisdiction of the French court. The wife told the court at the hearing on 7 February 2018 that she went to France and attended the conference on 2 October 2014 but was told it was private. The husband had no knowledge about that.
16. On 27 November 2014 a hearing took place at the Nanterre District Court which led to the divorce judgment of the French court. The judgment is dated 29 January 2015, the court's seal on the judgment is dated 18 February 2015.
17. The judgment sets out several matters. It notes that after issuing her French divorce the wife suggested the French court did not have jurisdiction, she wrote to the French court and referred to the English divorce petition. The judgment states that wife had failed to satisfy the French court as to lis pendens and she failed to attend and did not instruct a lawyer to represent her in the French proceedings. The French court determined it had jurisdiction and went on to grant the divorce. It dealt with financial matters and ordered the 'liquidation and division of the asset interests of the spouses', ordered the husband to pay the wife a sum of 30,000 Euros and monthly payments of 450 Euros to the children until they reach maturity, complete their studies and have a permanent salaried job. The husband has made the payments to the wife and children as required by the French order.
18. On 28 November 2014 the wife emailed the husband and refers to her 'bargaining proposal' stating that if they agree 'we can have it validated either before the French or English judge according to our choice but know that if it is the French judge who should decide to divorce, he will have to apply to English law'.
19. The wife was served with the French judgment on 26 February 2015 by recorded delivery at the Paris property, she did not appeal it. The certificate of non-appeal is dated 27 March 2015 and was issued by the court on 17 April 2015.
20. In April 2015 there were email exchanges between the husband and wife about the Paris property.
21. On 21 May 2015 the French divorce was transcribed onto the parties' French marriage certificate.
22. On 3 September 2015 the husband paid the wife 30,000 Euro pursuant to the order dated 18 February 2015.
23. The French court produced an Annex II certificate on 14 September 2016 in accordance with BIIR.
24. The husband issued his application for recognition under BIIR by Form 69 dated 19 January 2017 with a statement in support from his solicitor. By that point he had been served with the English Decree Absolute.

The English divorce proceedings

25. The chronology set out below has been mainly gleaned from the divorce file that was requested by this court and disclosed to the parties on 7 December 2017.
26. The wife's petition on the ground of adultery is dated 7 July 2011 and was issued on 8 July 2011. This was not served on the husband, although the wife states she emailed a copy to him on 26 August 2011. The husband responded by email on 24 September 2011 stating he did not receive any attachment on the email and nothing indicates he was aware the wife had issued English divorce proceedings.
27. In the divorce petition the wife gives the London and the Paris properties as the husband's address. The husband states he had moved to work in Ghana by the time these proceedings were issued, and only the wife lived at these addresses.
28. It is of note, as set out above, in October 2012 the wife issued her divorce petition in France, the non-conciliation hearing took place on 8 April 2013 and the non-conciliation order is dated 30 April 2013.
29. The wife signed a 'to whom it may concern' letter dated 2 September 2014 stating she wished to have her decree nisi confirmed as soon as possible and enclosed an application notice for Decree Nisi. Her application is dated 3 September 2014 and is stamped as being received by the 'CFC' (Central Family Court) on the same date.
30. On 8 September 2014 the CFC wrote to the wife to say that her application for a Decree Nisi had been stopped because there was no acknowledgement of service on the file.
31. On 15 January 2015 there is a letter on the divorce file from the husband to the CFC requesting a re-service of her application to him giving the Paris property address. It states, 'I would like to let you know that the divorce application has already been accepted in France by us and we are in front of the English Courts because we have been advised that you have the jurisdiction to deal with the financial aspect of the divorce'. The husband says he has no knowledge of this letter, stating there was no need for him to do this as he had a French divorce by then.
32. On 28 January 2015 the English court wrote to the husband at the Paris property in response to the letter said to be written by him requesting for the petition to be re-served. It stated as he is the respondent he can't progress the case as the petitioner has to write to the court and supply a copy of the original petition and request that he is re-served.
33. The acknowledgement of service dated 12 February 2015 is purported to be signed by the husband, it states the date he received the petition was 24 September 2011 (the same date he emailed saying there was no attachment to the email from the wife). The husband denies he signed this acknowledgement of service. His case is he had no need to as he already had a French divorce.
34. A letter dated 31 March 2015 from the CFC to the husband at the Paris property states that the acknowledgment of service has not been properly completed and asks for it to be amended and returned. The husband denies receiving this letter.
35. There is another letter on file dated 14 April 2015 'apologising' for not completing the acknowledgment of service purported to be sent from the husband, which the husband denies any knowledge of.
36. On 14 April 2015 (it could be 14 September 2015, the handwritten date is unclear on the document in the papers) District Judge Robinson signed the certificate that he is satisfied that the relevant requirements have been met and that this is an undefended case. The second part of the form is not signed until 18 December 2015, it is not entirely clear why this part of the certificate has a separate date, this could be due to the 'stop' letters referred to below.
37. The wife applied for a decree nisi on 15 May 2015, she attached an exhibit to the application which is a lengthy narrative statement. She states she wants to 'make the French Decree Nisi to be absolute under [BIIR]'. She refers to the fact that in 2012 she was living at the Paris property and went to France to file for divorce and refers to the conciliation hearing in 2013. She continues that she then returned to England and decided to pursue the English divorce. The statement does not give any details about the hearing in November 2014. At the very least this document put the court on notice of the existence of potentially relevant foreign divorce proceedings.
38. On 28 May 2015 the CFC wrote to the wife returning the application for a decree nisi stating 'the court requires an (sic) certified original translated version of the marriage certificate. The copy on file is in French'.
39. On 31 July 2015 the CFC wrote to the wife '…further to our stop letter of 28.5.15 and the translation of your marriage certificate lodged at the counter on 7.7.15. The court requires an original translation of the marriage certificate and further your application for Decree Nisi must also be submitted. We previously returned these documents to you on 28.5.15'.
40. The wife wrote to the court on 12 August 2015 which seems to have led to the order of HHJ Wright dated 25 August 2015 that 'The matter to proceed as documents are already on file. To be listed for Decree Nisi in the Special Procedure List'.
41. On 7 December 2015 the wife lodged a complaint with HMCTS regarding the delay in progressing her application for decree nisi.
42. On 18 December 2015 the second signature was put on the District Judge's certificate confirming the wife had sufficiently proved the contents of her petition.
43. The Decree Nisi is dated 14 January 2016.
44. On 3 March 2016 the wife applied for a Decree Absolute, which was granted on 7 April 2016.
45. On 26 June 2016 the wife scanned copies of the Decree Nisi and Decree Absolute to the husband via email.

Legal Framework

46. This is set out in Chapter III of BIIR which sets out the rules on recognition and enforcement of decisions as between Member States (MS). The relevant Articles are as follows:

Article 21

Recognition of a judgment

1. A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.

2. In particular, and without prejudice to paragraph 3, no special procedure shall be required for updating the civil-status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another Member State, and against which no further appeal lies under the law of that Member State.

3. Without prejudice to Section 4 of this Chapter, any interested party may, in accordance with the procedures provided for in Section 2 of this Chapter, apply for a decision that the judgment be or not be recognised.

The local jurisdiction of the court appearing in the list notified by each Member State to the Commission pursuant to Article 68 shall be determined by the internal law of the Member State in which proceedings for recognition or non-recognition are brought.

4. Where the recognition of a judgment is raised as an incidental question in a court of a Member State, that court may determine that issue.

Article 22

Grounds of non-recognition for judgments relating to divorce, legal separation or marriage annulment

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

(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought;

(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;

(c) if it is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is sought; or

(d) if it is irreconcilable with an earlier judgment given in another Member State or in a non-Member State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.

Article 24

Prohibition of review of jurisdiction of the court of origin

The jurisdiction of the court of the Member State of origin may not be reviewed. The test of public policy referred to in Articles 22(a) and 23(a) may not be applied to the rules relating to jurisdiction set out in Articles 3 to 14.

Article 26

Non-review as to substance

Under no circumstances may a judgment be reviewed as to its substance.

47. Article 21 provides that a judgment originating in one MS 'shall be recognised' in a receiving State 'without any special procedures being required'.
48. Article 24 prohibits any review of the jurisdiction of the MS of origin, and specifically provides that the 'public policy' test in Article 22 (a) may not be applied to questions of jurisdiction.
49. Article 26 prohibits any review as to the substance of the decision of the other MS.
50. The grounds for non-recognition of a judgment relating to a divorce are limited and set out in Article 22 (a) to (d).
51. It is well established that the 'public policy' exception in Article 22 (a) is of very limited application, such as where recognition or enforcement of the judgment would be 'at variance to an unacceptable degree with the legal order of the State in which enforcement is sought in as much as it infringes a fundamental principle' (per Krombach v Bamberski case C-7/98 [2001] QB 709 [37]).
52. It has been held that 'appearance' for the purposes of Article 22 (b) may include the lodging of documents at court, in addition to physical presence (see In Re D (A child) (Recognition of Foreign order) (Reunite Child Abduction Centre Intervening) [2016] 1 WLR 2469 para [66])
53. The procedure for enforcement recognition is provided for in Part 31 Family Procedure Rules 2010 (FPR). It requires the applicant to lodge the necessary documents in the MS of enforcement, including a copy of the relevant judgment and the Annex II certificate.
54. The application is initially considered by a District Judge of the Principal Registry without any attendance or representation by the respondent. In this case the order of DJ Robinson was made on consideration of the papers. Once a decision to register has been communicated and served the respondent is entitled to appeal, pursuant to Article 33 BIIR, but the appeal must be lodged with one month of service (Article 33 (5)). Although DJ Robinson's order is dated 10 March 2017 it was not sealed until 15 September 2017, as a result the wife's notice of appeal pursuant to r31.15 FPR dated 22 September 2017 has been made in time.

Submissions

The wife

55. The wife's main ground of appeal is that she states she was not aware of the order made by the Nanterre District Court on 18 February 2015 and was not given notice of the husband's summons that resulted in that order being made. She said she notified the court in France of her address in London and was not served there. She relies on Article 22 (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'.
56. In any event she submits that jurisdiction is here, as her divorce petition here was issued in July 2011, before her divorce petition in France issued in October 2012.

The husband

57. The husband submits none of the grounds for non-recognition under Article 22 are established.
58. The wife does not rely on any public policy ground under Article 22 (a), the wife accepts she wanted to be divorced.
59. He submits the core of the wife's appeal relates to her assertion that jurisdiction here is based on the English petition she issued in 2011. The proper place to litigate that issue was in the French court at the time of the French proceedings, which were instigated by wife's petition in October 2012. The issue of jurisdiction was raised by the wife in her letter to the court on 9 September 2014 and was determined against the wife. This court is specifically prohibited from reviewing either the jurisdiction or the substance of the French order. It is submitted the wife can't re-run those arguments in these proceedings, particularly in circumstances where she issued the French proceedings.
60. Any reliance by the wife on Article 22 (b) and non-service is not applicable as she was not the 'respondent' to the French proceedings, she initiated the proceedings in France with her own divorce petition. Article 22 (b) could be construed to apply to the wife, she was 'served with the document which instituted the proceedings or with an equivalent document in sufficient time' because it was her own petition that instituted the proceedings. Even if she could be considered a 'respondent' as the husband had issued a summons within the wife's divorce proceedings that resulted in the judgment, it is clear from the French judgment and the letters she wrote to the French court she was aware of the ongoing proceedings in France. Article 22 (b) provides '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' (emphasis added). He submits she chose to disengage from the French proceedings after she had notice and was aware of them.
61. The husband submits Article 22 (c) and (d) can't apply as by the time the English court pronounced the decrees the marriage had already been dissolved in France, hence the decrees here were a nullity. Therefore, it can't be said that recognition here of the French divorce would be irreconcilable with the decrees made here. Both judgments entail the divorce of the parties. There are powerful policy reasons why the wife should not be permitted to rely on the later English decrees as creating an 'irreconcilable' judgment in circumstances where she initiated the French divorce proceedings and when there is some evidence to suggest the wife may not have given all the relevant information to obtain her decrees here, such behaviour should not be incentivised. If the French decree was not recognised it would create precisely the situation BIIR was designed to avoid, namely conflicting judgments affecting the status of the parties within the EU.

Discussion and Decision

62. It is only when you draw the threads together of the two sets of proceedings that the position becomes clearer.
63. There is no dispute that the wife issued the divorce proceedings in France in 2012 and both parties attended the non-conciliation hearing in April 2013. The judgment dated 18 February 2015 records that the wife had sent several letters to the French court disputing the jurisdiction of the French court and stating the competent jurisdiction was England and she had started divorce proceedings there in 2011. The letter dated 9 September 2014 sets out her position regarding jurisdiction. The French court determined that issue, having considered her letters, and concluded it had jurisdiction. The judgment records that the divorce ruling will take effect on the date of the non-conciliation order in 2013.
64. The judgment records that the French court was satisfied the wife had been served with notice in accordance with the French civil code by bailiff's deed dated 1 August 2014 served at the Paris property, which was declared by her as her home in 2013. It is clear from her email to the husband dated 10 August 2014 that she was made aware by her son who lived at the Paris property that 'a bailiff came to hand over a divorce petition from you' which is very likely to refer to the service accepted by the French court as being effective. By that stage the wife was at the very least put on notice.
65. The husband's French lawyer sent the wife a letter to the Paris property on 27 August 2014 enclosing documents relevant to the husband's summons. The wife's letter to the French court on 9 September 2014 makes it clear the wife was aware of the French proceedings, the divorce summons and a forthcoming hearing. This letter sets out her position about the proceedings and her challenge to the French court's jurisdiction.
66. During this time the position remained that the wife had exclusive use of the Paris property and was able to receive information sent to that address, albeit that the parties son was living there at the relevant time. The email exchanges between the husband and wife in June 2014 about the wife providing the husband with her Inland Revenue number that was sent to the Paris property illustrates this, as well as her providing information regarding the husband's tax number from documents kept at the Paris property.
67. I agree with Ms Perrins' submissions on behalf of the husband, the wife does not raise any public policy grounds that would bring her within Article 22 (a), she wants to be divorced.
68. To be able to successfully rely on Article 22 (b) the wife has to satisfy the court that the judgment was given in default of appearance. In my judgment she has not done so for the following reasons:

(1) Whilst there maybe a debate as to whether she is a 'respondent' as she initiated the divorce proceedings in France, she could be considered a respondent to the summons issued by the husband the resulted in the order dated 18 February 2015.

(2) The Annex II certificate states that the decision was not given in absentia. Whilst this is not conclusive it is evidence this court can rely on and take into account.

(3) Article 22 (b) provides that 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'. Here it is clear the wife knew of the husband's summons with sufficient time to enable her to arrange for her defence. She had that opportunity and set out her position in detail in her letter to the French court dated 9 September 2014. The fact that she then chose to take no further part in the proceedings doesn't bring her within the provisions of Article 22 (b). As was made clear in Re D the court is concerned to ensure the respondent had an opportunity of defending herself before the court first seised (paras [59], [60]); on the facts here, she did. She had knowledge of the proceedings, had knowledge of the documents, and wrote to the court several months before the court judgment was entered and she chose not to take any further part in the proceedings. In those circumstances she does not come within the provisions of Article 22 (b).

(4) Re D at para 66 makes it clear appearance does not just mean physical appearance but can also mean lodging of documents. The wife wrote to the court on several occasions, her letter of 9 September 2014 demonstrates she was aware of the French proceedings.

(5) She was served in sufficient time to arrange for her defence.

69. Turning at Article 22 (c) and (d) there is no basis for saying the French divorce order should not be recognised here as it is irreconcilable with the divorce decree here; by the time the decree was made here the marriage had already been dissolved in France. In addition, there are sound policy reasons why the wife should not be allowed to rely on the later English divorce decrees as creating an 'irreconcilable' judgement when there is evidence to suggest the wife had not given this court all the relevant information prior to obtaining the divorce decree here. The procedure for registration within BIIR is specifically designed to prevent conflicting judgments affecting the status within the EU.
70. For these reasons the wife's appeal is dismissed.
71. Turning to the husband's application to set aside the decree of divorce here. I am quite satisfied the Decree Nisi and Decree Absolute should not have been made and would not have been made if this court had been fully put in the picture about the French proceedings and the orders made by the French court. The Decree Nisi on 14 January 2016 and Decree Absolute on 7 April 2016 should be set aside as they are null and void.
72. Two final matters which do not affect the court's decision but should be noted.
73. First, there was a delay of six months between the registration order being made by DJ Robinson on 10 March 2017 and it being sealed by the court on 15 September 2017. I will ensure this is brought to the attention of the relevant Designated Family Judge.
74. Second, whilst there may be some criticism of the wife that she may not have given this court all the relevant information about the French proceedings there are two documents on the divorce file here (the letter dated 15 January 2015 and the narrative exhibit attached to the wife's application for the decree nisi dated 15 May 2015 (see paras 30 and 36 above)) that should have put this court on notice of the existence of proceedings in another jurisdiction. When this court considers pursuant to FPR r 7.20 (2) whether it is satisfied that the applicant is entitled to a decree nisi it must still apply s1(3) of the Matrimonial Causes Act 1973 which provides 'on a petition for divorce it shall be the duty of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner and into any facts alleged by the respondent'. If the documents on the court file raised the issue as to whether there are any proceedings continuing in any country outside England and Wales which are in respect of the marriage in question or which are capable of affecting its validity or subsistence and the court considers that the question whether the proceedings should be stayed should be heard then in accordance with FPR r 7.27 (1) the court must give directions for the hearing of that question. FPR r 7.27 (2) states that where it appears to the court in matrimonial proceedings that, under Art 16 to 19 BIIR the court does not have jurisdiction to hear the application and is or may be required to stay the proceedings, the court will stay the proceedings and fix a date for a hearing to determine the questions of jurisdiction or whether there should be a further stay or other order. In Lachaux v Lachaux [2017] 4 WLR 56 the foreign divorce was referred to in the divorce petition. Here in the wife's application for the decree nisi dated 15 May 2015 her statement in support at paragraph 2 ticks the box stating that she does wish to alter or add to any statement in the petition and she refers to her exhibit which includes reference to her wanting to make the 'French Decree Nisi to be absolute' and the French divorce petition. This information should have prompted an investigation and consideration of whether the information may require the matter to be listed for a hearing. For reasons which are unclear that did not happen in this case.