Emin v Yeldag
| Jurisdiction | England & Wales |
| Judgment Date | 05 October 2001 |
| Date | 05 October 2001 |
| Court | Family Division |
England, High Court, Family Division
(Sumner J)
Recognition — States — Turkish Republic of Northern Cyprus (‘TRNC’) — Lack of recognition by United Kingdom Government — Effects of non-recognition — Family law — Recognition of foreign divorce — Whether English court entitled to recognize decree of divorce issued in TRNC — Recognition of acts of unrecognized States concerning private rights — Status of the TRNC under the Family Law Act 1986 — Establishment of the Republic of Cyprus — Whether Cyprus exercising effective control over whole island —De facto authority in northern part of island — The TRNC as a defined territory — Whether Republic of Cyprus comprising one country with two territories operating different systems of law — The law of England
Summary:2The facts:—The applicant applied to the Court for leave to make a claim for ancillary relief under the Matrimonial and Family Proceedings Act 1984 (‘the 1984 Act’) following the dissolution of her marriage by a court in the Turkish Republic of Northern Cyprus (‘the TRNC’). The TRNC was not recognised by the UK Government.
For leave to be granted under the 1984 Act, the divorce had to be recognised by the Court as valid in England and Wales and substantial grounds for granting the application had to exist. The recognition of overseas divorces was governed by sections 45–54 of the Family Law Act 1986 (‘the 1986 Act’). The need to determine maintenance levels and the distribution of matrimonial assets in the UK formed credible grounds for the application. The substantive issue before the Court therefore was whether the UK Government's decision not to recognize the TRNC affected the Court's ability to accept the validity of a decree of divorce obtained there.
Held:—Leave was granted subject to Section 46 of the 1986 Act being satisfied. Provided no statutory grounds for refusal existed, decrees of divorce properly obtained from the TRNC could and should be recognized by the courts as valid in England and Wales.
(1) Lack of recognition by the United Kingdom was not a bar to the English courts' ability at common law to recognize decrees of divorce issued in the TRNC.
(a) There was a well-established principle that the judiciary and executive should not be at variance in the recognition of a foreign State. However, a very limited exception, present in international law and acknowledged by the European Court of Human Rights, existed that enabled the courts to recognize as valid those acts of unrecognized States that affected the marital status of their inhabitants. Non-recognition of such acts would be detrimental to the personal rights of the inhabitants and run contrary to a well-established body of jurisprudence (paras. 28–64).
(b) However, the validity of such acts by a court of an unrecognized State was limited in scope and should never be inconsistent with the foreign policy or diplomatic stance of the Government. Wherever possible, a court required to recognize the validity of acts of an unrecognized State should seek submissions from the Attorney-General (paras. 65–7).
(2) For the purposes of divorce recognition, Section 49(2) of the 1986 Act enabled the Court to treat as a country an area more properly defined as a territory. The Republic of Cyprus could be regarded as one country with two territories operating different systems of law within the meaning of section 49(1) of the 1986 Act. Since 1974, effective control over the northern part of Cyprus, which was separated by a buffer zone, had not been exercised by the Government of Cyprus but by those purporting to act for the TRNC. The TRNC operated its own system of law and governed the citizens within the area in matters including marriage and divorce (paras. 69–84).
The following is the text of the judgment of the Court:
1. This is an application of 5 April 2001 issued by the applicant, Ms Zalihe Emin. She seeks leave to make an application for ancillary relief under s 13 of the Matrimonial and Family Proceedings Act 1984 (the 1984 Act). That is necessary because her marriage was dissolved in an overseas country. By s 12 of the 1984 Act an application may be made if the divorce is entitled to be recognised as valid in England and Wales. Leave will be granted under s 13 only if there is a valid dissolution and there are substantial grounds for making such an application.
2. The jurisdiction to make such an application is governed by s 15 of the 1984 Act. It is dependent on one of the parties either being domiciled in England and Wales at the time of the application, or habitually resident here for a year prior to the application. On the evidence before me I am satisfied that that is true of the applicant.
3. The main issue I have to resolve can be stated quite shortly. The applicant's marriage was dissolved in June 2000 by a court in northern Cyprus, otherwise known as the Turkish Republic of Northern Cyprus (TRNC). The British Government does not recognise the TRNC. The issue is whether the lack of recognition affects the validity of the dissolution of the applicant's marriage. The applicant relies upon that decree of divorce for the purposes of her present application.
4. The applicant was born on 19 September 1968 in Famagusta, Cyprus. The respondent was also born there on 6 December 1966. In 1971 the applicant came to this country. She is a British citizen and holds a British passport.
5. She returned to Cyprus in 1988. The parties were married in Famagusta in September 1989. In 1990 they both came to this country. There are two children of the marriage, Kezban born on 10 September 1991 and Gulcen born on 4 April 1994.
6. Whilst here they acquired a property consisting of a flat and shop as an investment. Subsequently in 1997 they purchased a home in joint names in Ilford, Essex. The same year the respondent left the applicant and went to live in Turkey, where he remains. On 7 June 2000 the respondent obtained a final decree of divorce from the Family Court of Gazi Magusa in the TRNC. The applicant has remained in the UK looking after the two children. She is wholly dependent on the rent from the investment property and child support to maintain herself and the children.
7. I have before me two affidavits of the applicant of 5 April and 25 June 2001. She has exhibited a letter to her first affidavit from her solicitor in the TRNC confirming that the decree obtained by the respondent was in accordance with the law and practice of the TRNC. I accept that.
8. There is also an affidavit from Mr Geoffrey Gillham of 3 August 2001. He is the head of the South European Department of the Foreign and Commonwealth Office, and duly authorised to swear the affidavit on behalf of the Foreign Secretary.
9. This followed a direction by Munby J on 16 May 2001 that the application be served on the Attorney-General and the Secretary of State for Foreign and Commonwealth Affairs. On 13 June 2001 Charles J directed that the Foreign Secretary was to serve an affidavit expressing Her Majesty's Government's view of the status of the TRNC.
10. The respondent has been served with notice of this application. He has neither appeared nor been represented. The result is that on 5 October 2001 I heard argument from Mr Bethlehem on behalf of the Secretary of State and the Attorney-General. I have also heard argument from Miss Littlewood on behalf of the applicant.
11. Mr Bethlehem submitted a detailed skeleton argument. It has been of great assistance. Miss Littlewood also presented a helpful skeleton argument. For that and the arguments of counsel I am much indebted. It is to be regretted that the hearing was curtailed by other applications in my list.
12. Mr Bethlehem very properly made clear the limited nature of his submissions. It was confined to the validity and recognition of the divorce decree pronounced by the court in the TRNC. He did not make submissions on the merits of the application nor the domicile or habitual residence of the applicant or respondent.
13. Mr Bethlehem's submission in essence is that the UK Government does not recognise the TRNC. This he says does not bar the court's...
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