Golubovich v Golubovich and Another (No 2)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,Lord Justice Etherton,The Master of the Rolls |
| Judgment Date | 13 July 2010 |
| Neutral Citation | [2010] EWCA Civ 810 |
| Docket Number | Case No: B4/2010/0916/PTA+A |
| Court | Court of Appeal (Civil Division) |
| Date | 13 July 2010 |
[2010] EWCA Civ 810
The Hon. Mr Justice Singer
Before: The Master of the Rolls
and
The Right Honourable Lord Justice Thorpe
and
The Right Honourable Lord Justice Etherton
Case No: B4/2010/0916/PTA+A
FD10P00740
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
Jonathan Southgate (instructed by Family Law in Partnership LLP) for the Appellant Husb and
Deborah Bangay QC and Amber Sheridan (instructed by Hughes Fowler Carruthers) for the Respondent wife
Hearing dates: 21st and 27th May 2010
The Issue
The issue raised by this appeal is the recognition of a decree of divorce pronounced by a competent foreign jurisdiction. The refusal to recognise such a decree is controlled by statutory provisions contained in Section 53 of the Family Law Act 1986. More specifically in this appeal we consider the refusal of recognition on the grounds of public policy under Section 53 (1)(c). Ultimately we must consider whether Singer J mis-directed himself, or alternatively was plainly wrong to refuse recognition of the divorce pronounced by the Court of First Instance in Moscow on 25 th December 2009 on the grounds that recognition clearly offended our public policy.
The offence that Singer J concluded justified the refusal of recognition was the disregard of Hemain injunctions included in London orders in October and November 2009 and designed to prevent the pronouncement of any further divorce in Moscow pending the trial of an issue, fixed for March 2010, as to the validity of a Moscow divorce allegedly pronounced in July 2009.
Such an injunction takes its name from the decision of this court in the case of Hemain v Hemain [1988] 2 FLR 388. The decision validates the power to grant an injunction restraining the party from pursuing proceedings in a foreign jurisdiction to prevent that party from obtaining unfair advantage. Unlike an anti-suit injunction, which is a perpetual injunction permanently restraining the pursuit of foreign proceedings, a Hemain injunction is interim, for a limited time and purpose, typically preserving a legal status quo pending an application or trial.
Family History
This can be briefly summarised. For convenience I will throughout refer to the parties as husband and wife although they are now undoubtedly divorced. The wife is twenty-six. She is Russian, although for some years she has lived outside the Russian Federation.
The husband is twenty-four years of age. He too is Russian and has lived in other jurisdictions for some years.
The young couple married in Italy in 2007. Their only daughter, Maya, was born in 2008.
The couple established their only marital home in adjoining flats in South Kensington. These were expensive and luxurious assets, the acquisition of which was made possible by the affluence of the husband's family. The beneficial ownership of these premises is in dispute, a dispute which will be resolved by a judgment which Moylan J has yet to hand down.
The couple's rights of residence within this jurisdiction also flowed from the affluence of the husband's family. We were told that he husband secured an investor visa, valid until September 2011, by the deposit of a sum of £1,000,000.
The marriage broke down in 2009 and there is no doubt the first divorce petition was filed by the wife in London on 12 th February 2009. Equally there is no doubt that the London court had jurisdiction, given that both had been habitually resident in this jurisdiction for more than 12 months before the filing of the petition. The wife's preference for a London divorce, although not articulated, is obvious.
The History of the Proceedings
Equally obvious is the husband's unarticulated preference for a Moscow divorce. He asserted that he filed his petition on the 12 th or 13 th February 2009, although Singer J subsequently found that the proceedings did not get under way until 13 th April.
The history of the concurrent competitive proceedings in the two jurisdictions is complex and often obfuscated. For the purposes of this judgment a simplified summary suffices drawing on the findings of Singer J in the court below. I will not separate the London and Moscow chronologies but will endeavour an overview highlighting significant developments in each jurisdiction in chronological order.
By way of introduction to this overview I state the obvious: in this jurisdiction the wife sought acceleration and the husband delay. In Moscow the husband sought to speed the process and the wife to defer it. Each thoroughly understood that whichever jurisdiction dissolved the marriage would then decide ancillary relief claims according to its internal law and practice. Neither party sought to establish which was the more convenient and thus primary jurisdiction. Instead they embarked upon a crude race, pitting one jurisdiction against the other and avoiding any judicial appraisal of where the balance of fairness and convenience lay. Neither jurisdiction invited any judicial collaboration.
In this jurisdiction the husband obstructed the wife's petition by filing a curious Answer on 30th day of March 2009. He denied that the marriage had broken down irretrievably then pleaded that it had broken down. He denied the allegations of conduct in the wife's petition. He asserted that Russia was the more appropriate forum but did not issue the application for a discretionary stay (under paragraph 9 of schedule 1 of the Domicile and Matrimonial Proceedings Act 1973) which his answer forewarned.
The resultant defended cause was subsequently fixed for a two day trial on 10 th August 2009.
In Moscow the wife reciprocated by baulking his petition, as she was able to do by asserting that she was the mother of a child under one and did not consent to a divorce. The husband appealed that plea taking the obvious point that a wife petitioning for divorce in London could not credibly assert in Moscow that she was opposed to divorce. It was not until the 3 rd July that his appeal was allowed.
The consequence of the wife's manoeuvre was that the husband's petition did not return to the lower court until the 8 th July. But for this manoeuvre the husband would have obtained the Moscow divorce before the London fixture on the 10 th August.
In these sagas it is commonly seen that one sharp manoeuvre provokes an even worse response. The husband and/or his lawyer invented a hearing of the 21 st July in the Moscow court and forged a purported decree of divorce. The husband then had the decree entered in the appropriate civil register and upon his passport. At the fixture in London on 10 th August he asserted the fictitious divorce, submitting that the wife's petition consequentially failed. Her Honour Judge Pearlman had little option but to adjourn the wife's petition for trial of an issue as to whether the marriage had in fact and law been dissolved in Moscow on 21 st July. She set the trial of that issue for 15 th March 2010.
Since the husband was vehemently asserting the validity of the decree of 21 st July he presumably had little difficulty in undertaking to Judge Pearlman that in the interim he would “take no further steps in pursuit of the substantive divorce aspect of any proceeding that may in fact exist between the parties in Moscow, (although he denies that there are any such proceedings)…..”.
The drama then reverted to the Moscow stage when the wife applied in the superior court for the cancellation of the divorce within the civil register. The respondent to that application was the Registrar and the husband was a third party.
On the 2 nd October the entry was annulled on the simple grounds that the purported decree of 21 st July had never been pronounced and that the husband's suit must therefore resume for hearing on 29 th October.
Accordingly in London the wife sought and obtained some fortification of the restraint at a hearing before Deputy Judge Verdan QC. The husband's previous undertaking was elevated to an order in the following terms:
“4. Until the hearing on 9 th November (when the matter will be further considered) the respondent, by himself his servants agents or otherwise, be restrained from taking any further steps in relation to the divorce aspect of any proceedings between the parties in Russia; provided that he may if necessary or if he is so advised, attend the Court in Moscow on 29 th October to achieve the adjournment provided for at paragraph 5 below.
5. The respondent do take all steps as may be necessary to secure the vacation or adjournment of the hearing fixed for 29 th October in Moscow.”
As it turned out on the 29 th October the husband's newly instructed advocate took no active steps to adjourn the hearing and left the consideration of these matters to the court's discretion.
Thus the outcome on the 29 th October was that the divorce suit was transferred back to the lower court to pursue its course interrupted by the wife's issue concerning the domicile of Maya.
At the hearing on 9 th November Bennett J declined an application for an order that the husband withdraw the continuing proceedings in Moscow. As Mr Cusworth QC, then appearing for the wife, put it:
“the concern we have is that the Russian court may simply go ahead and make the decree now without any more positive step from the husband. He has to positively say “do not”. He positively has to say ‘stop it’.”
The judge declined to go that far. The order in its essence was in the following terms:
“…pending...
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