Duhur-Johnson v Duhur-Johnson
| Jurisdiction | England & Wales |
| Judgment Date | 03 May 2005 |
| Date | 03 May 2005 |
| Court | Family Division |
FAMILY DIVISION
Before Mr Jeremy Richardson, QC
Family - divorce - recognition of divorces obtained overseas
Even assuming an apparently valid overseas divorce was effective in that country, it would not be recognised in England unless domestic statutory provisions were met.
Mr Jeremy Richardson, QC, sitting as a deputy judge of the Family Division, so stated when dismissing an application by the husband, Mark Duhur-Johnson, to stay divorce proceedings brought in England by the wife, Shirley Ese Duhur Johnson.
His Lordship set out factors that were relevant when the court was deciding whether to exercise its discretion under section 51(3)(a)(i) of the Family Law Act 1986.
Section 51 of the 1986 Act provides: "(3) recognition … of the validity of an overseas divorce may be refused if -(a) in the case of a divorce 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…"
Mr Tim Amos for the Attorney-General, as intervener; Mrs Christina Omideyi for the husband; the wife in person.
HIS LORDSHIP said that the husband sought to have the English proceedings stayed on the ground that he had already obtained a divorce in Nigeria and that the English courts should recognise that divorce under section 45(1) of the 1986 Act.
The court was permitted to recognise an overseas divorce only if it was effective under the law of the country in which it was obtained. In order to decide that point, evidence was necessary as to whether the divorce, seemingly obtained in the High Court of the Delta State of Nigeria, was effective in that jurisdiction.
As there was no evidence that the divorce was effective in Nigeria, the court could not recognise that divorce.
However, his Lordship was prepared to assume that the divorce was effective under Nigerian law, in order to engage the provisions of section 51(3) of the 1986 Act.
After considering D v D (Recognition of Foreign Divorce)FLR ((1994) 1 FLR 38); Wicken v WickenFLR ((1999) 1 FLR 293) andEl Fadl v El FadlFLR ((2000) 1 FLR 175), his Lordship said that the relevant law could be distilled into the following propositions:
1 The power contained in section 51(3) as a whole provided for wide judicial discretion. The provisions did not have to be...
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