H v H (Queen's Proctor intervening) (validity of Japanese divorce)
| Jurisdiction | England & Wales |
| Judge | STEPHEN WILDBLOOD QC |
| Judgment Date | 14 September 2006 |
| Court | Family Division |
Divorce – Overseas divorce – Recognition by English court – Husband and wife marrying in United Kingdom – Husband issuing nullity petition on ground wife already married in Japan – Wife alleging lawfully divorced by kyogi rikon – Husband alleging form of divorce not recognised in United Kingdom – Whether kyogi rikon amounting to divorce obtained by means of proceedings – Whether recognition should be refused on other grounds – Family Law Act 1986, s 46(1), s 51(3).
The husband and wife were married in the United Kingdom in 1996. In 2005, the wife issued a petition for divorce. The husband filed a response, which denied that he was lawfully married to the wife on the basis of her prior marriage to E in Japan in 1982. As far as Japanese law was concerned, the wife had been legally divorced from E in 1985 by a form of divorce known as a ‘kyogi rikon’. Such a divorce was available under art 763 of the Japanese Civil Code which provided that ‘husband and wife may effect a divorce by agreement’. The parties were required to sign a form called a ‘rikon todoke’, although, pursuant to art 739 of the code, the divorce only became effective upon registration in the manner prescribed by Japanese law. The wife signed the relevant document, but left Japan some three months before the registration process was completed by E. The husband subsequently issued a petition for nullity. The Queen's Proctor intervened. The husband submitted, inter alia, that the marriage was void under s 11(b) of the Matrimonial Causes Act 1973 on the ground that, at the time of the marriage, the wife was already lawfully married since the form of divorce undertaken in relation to that marriage ought not be recognised in the United Kingdom. It was submitted that the kyogi rikon was not a divorce ‘obtained by means of proceedings’ for the purposes of s 46(1) of the Family Law Act 1986, as the involvement of the state was ‘simply probative’, merely registering what the parties had done by agreement. Issues arose as to whether the kyogi rikon was a divorce ‘obtained by means of proceedings’ for the purposes of s 46(1) of the Family Law Act 1986, and if so, as to whether recognition thereof ought to be refused under s 51(3) of that Act.
Held – (1) The process taken as a whole brought the kyogi rikon within the ambit of ‘other proceedings’. The involvement of the state was not ‘simply probative’. Nor could the involvement of the state be regarded as mere
‘surplusage’. The state did not simply prove the divorce that the parties had achieved by their prior act of consent. The consent of itself created nothing. The registration of the divorce by the state was fundamental to its effect; no registration, no divorce. The fact that the state employee who effected the registration played no more than an administrative role did not make the procedure as a whole purely administrative; Quazi v Quazi [1979] 3 All ER 897, Chaudhary v Chaudhary [1984] 3 All ER 1017 and El Fadl v El Fadl[2000] 1 FCR 685 applied.
(2) It was necessary to consider s 51 of the 1986 Act insofar as it related to s 46(1). There was no reason under s 51(3) of the Act to refuse recognition. In the instant case s 51(3)(a)(i) did not apply. The wife had had notice of the proceedings and had signed the rikon todoke. Next it was necessary to decide whether, under s 51(3)(a)(ii), the divorce was obtained ‘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’. The wife had taken part in the divorce to the extent that she had wished; she had chosen to leave the rest to E and had done so in accordance with Japanese law. On an objective standard, there had been nothing unreasonable about that. Nothing under that provision would lead to refusal of recognition of the divorce. In the circumstances there was no basis for refusing recognition on the ground of public policy; Kendall v Kendall [1977] 3 All ER 471 and Eroglu v Eroglu [1994] FCR 525 applied.
Accordingly, the petition would be dismissed.
Cases referred to in judgmentAbbassi v Abbassi[2006] EWCA Civ 355, [2006] 1 FCR 648, [2006] 2 FLR 415.
Bell v Kennedy (1868) LR 1 Sc & Div 307, HL.
Boldrini v Boldrini and Martini [1932] P 9, [1931] All ER Rep 708, CA.
Casdagli v Casdagli [1919] AC 145, [1918–19] All ER Rep 462, HL.
Chaudhary v Chaudhary [1984] 3 All ER 1017, [1985] Fam 19, [1985] 2 WLR 350, [1985] FLR 476, CA.
Cramer v Cramer [1987] 1 FLR 116, CA.
Cruh v Cruh [1945] 2 All ER 545.
El Fadl v El Fadl[2000] 1 FCR 685, [2000] 1 FLR 175.
Eroglu v Eroglu [1994] FCR 525, [1994] 2 FLR 287.
Fuld’s Estate (No 3), Re, Hartley v Fuld [1965] 3 All ER 776, [1968] P 675, [1966] 2 WLR 717.
H and R (minors) (sexual abuse: standard of proof), Re[1996] 1 FCR 509, [1996] 1 All ER 1, [1996] AC 563, [1996] 2 WLR 8, [1996] 1 FLR 80, HL.
K v K (ancillary relief: management of difficult cases) [2005] EWHC 1070 (Fam), [2007] 2 FCR 94, [2005] 2 FLR 1137.
Kendall v Kendall [1977] 3 All ER 471, [1977] Fam 208, [1977] 3 WLR 251.
Lee v Lau [1964] 2 All ER 248, [1967] P 14, [1964] 3 WLR 750.
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Rampal v Rampal (No 2) [2001] EWCA Civ 989, [2001] 2 FCR 552, [2002] Fam 85, [2001] 3 WLR 795, [2001] 2 FLR 1179.
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PetitionThe husband issued a petition for the nullity of his marraige to the wife. The Queen's Proctor intervened. The facts are set out in the judgment.
STEPHEN WILDBLOOD QC.SUMMARY OF MY CONCLUSION[1] In this judgment I conclude that a Japanese divorce, called a kyogi rikon, is a divorce ‘obtained by means of proceedings’ for the purposes of s 46(1) of the Family Law Act 1986. I decline to refuse recognition of that divorce under s 51(3) of the Act. I therefore reject the petition for nullity under s 11(b) of the Matrimonial Causes Act 1973.
INTRODUCTION[2] On 24 February 1996 the petitioner, whom I shall call ‘the husband’, and the respondent, whom I shall call ‘the wife’, went through a ceremony of marriage at the Registry office in Taunton Deane. At the time of the marriage the husband was aged 45 and the wife was aged 35; the certificate describes the condition of both of them as ‘previous marriage dissolved’.
[3] The husband contends that the marriage is void under s 11(b) of the Matrimonial Causes Act 1973 on the grounds that, at the time of the marriage to the wife, she was already lawfully married. That contention is based upon the fact that the wife had previously married a man (‘Etsuo’) in Japan on 2 November 1982; the husband contends that her marriage to Etsuo should be
treated as subsisting since the form of divorce that was made in Japan relating to that marriage should not be recognised in this country.
[4] All parties accept that the marriage to Etsuo should be recognised as valid under the domestic law of England and Wales.
[5] Documentation has been produced that shows that her marriage to Etsuo was ended by divorce in Japan on 27 February 1985. The form of divorce suggested by that documentation is called a ‘kyogi rikon’. In order to obtain such a divorce in Japan it is necessary to sign a form called a rikon todoke. The rikon todoke in this case is a document that has to be examined with some care since it conveys information of importance to the facts of the case. It is accepted that, in so far as Japanese law is concerned, Etsuo and the wife were legally divorced on 27 February 1985.
[6] A kyogi rikon is a valid form of divorce in Japan, (where, apparently, it is the most frequently used method of divorce). It is available under art 763 of the Japanese Civil code. That code provides that ‘husband and wife may effect a divorce by agreement’. Under art 739 of that code, the divorce becomes effective by notification in accordance with the provisions of the [Japanese] Family Registration Law. Without registration in accordance with the Japanese law there is no divorce. The provisions of that law are explained in experts’ reports to which I refer later. In my judgment, however, it is significant to note that the divorce does not take effect as a result of the parties’ agreement alone; for the divorce to be effective there must be registration in the manner prescribed by Japanese law. Registration is formative of (and essential to) the divorce; it is not simply probative of the divorce.
[7] The contentions of the husband are embodied in his petition by which he seeks a declaration that the marriage is void. That petition is dated 8 March 2005 and contains the following pleading: ‘The Respondent was lawfully married in Japan to Etsuo . At the time of the purported marriage to the Petitioner that marriage had not been lawfully dissolved.’ On 20 August 2005 the wife filed her answer to that petition rejecting the suggestion of an unlawful marriage and pleading that she had been effectively divorced from Etsuo; her answer pleads: ‘The Respondent’s marriage to Etsuo was dissolved by a divorce … registered on 27 February 1985 at …’
[8] Prior to the issue of the nullity petition, on 26 January 2005, the wife had issued a petition for divorce, relying...
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