Joana Yaa Botwe v Johnson Anom Brifa
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cobb |
| Judgment Date | 16 August 2021 |
| Neutral Citation | [2021] EWHC 2307 (Fam) |
| Court | Family Division |
| Docket Number | Case No: ZZ20D14768 |
[2021] EWHC 2307 (Fam)
THE HONOURABLE Mr Justice Cobb
Case No: ZZ20D14768
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Remotely (MS Teams), as if from: Family Court
Coverdale House
East Parade
Leeds
The Applicant was present, and unrepresented
The Respondent was present, and unrepresented
Hearing dates: 13 & 14 July 2021
Approved Judgment
THE HONOURABLE Mr Justice Cobb
This judgment was delivered in public.
Introduction
The recognition, or non-recognition, of divorce affects a party's status; this in turn can affect matters as diverse as nationality, immigration status, and the freedom to marry. These considerations lie behind an application dated 8 December 2020 made by Ms Joana Botwe (who, for convenience – although I realise that this terminology lies at the heart of the dispute – I shall refer to as “the wife”) who seeks a declaration that she is currently married to Mr Johnson Brifa (“the husband”); this application is brought pursuant to the provisions of sections 51 and 55 Family Law Act 1986.
The parties agree that they were married on 4 March 2017 in Accra, Ghana, in accordance with tribal custom. There is no dispute in this case as to the validity of the marriage by the lex loci celebrationis and it is evidenced, for our purposes, by a marriage certificate (see §3.1 of PD7A FPR 2010 1).
The issue arising in this application is whether the parties have been divorced by similar tribal custom in Ghana, and whether, if so, this court should recognise the same. In this regard, I have conducted a hearing to consider the following specific questions:
i) As a matter of fact, did the parties go through a custom/procedure in Ghana in the presence of the parties' families (as would be required), on or about 25 August 2019, to bring an end to their marriage by divorce, as the husband maintains?
ii) Was the certificate of registration of divorce in Ghana, which followed the alleged customary divorce, lawfully and legitimately obtained, and signed by the wife's father as a witness, as the husband maintains?
iii) Was the alleged registration of the divorce by the parties' families an integral part of the ‘process’ of the divorce, or merely evidence of the same? Thus, if there was a customary divorce, was it obtained by a “judicial or other process”?
iv) If the customary divorce procedure was followed exactly as the husband maintains, was this procedure effective to achieve a divorce in Ghana?
v) Depending on whether the divorce was obtained by “judicial or other process”, will the divorce be recognised in this country? Relevant to this question will be a consideration of where the parties were domiciled and/or habitually resident at the time of the alleged divorce.
For the purposes of determining the application, I have heard oral evidence from the wife and the husband. Both of them appeared without legal representation before me. I have heard oral evidence from the wife's father, Mr Ernest Appietu, and from the husband's mother, Mrs Lydia Asantewaa both of whom joined the hearing by video-link from Accra, Ghana; Ms Asantewaa's evidence was given in her native language of Twi. I have received a number of supporting statements from family members. The parties have both filed a range of other documents which they maintain support their
respective cases. At my direction, the parties jointly commissioned an expert's report from Ms Charlotte Boaitey, a barrister at the English and Ghanaian Bar. Following the hearing, and while reflecting on the evidence and preparing this judgment, I caused further questions to be posed of Ms Boaitey, which she has helpfully answered.Background facts
The parties are Ghanaian nationals. The husband has lived in this country for many years. The wife had been living here since 2012. It is material to note that the wife came to this country nine years ago under a 2-year family visitor visa (to visit her sister); she accepts that at the end of that period she became an ‘overstayer’. In 2014, she met the husband, and they co-habited. In 2016, they made preliminary arrangements to be married in England; the registrar refused them permission given the wife's lack of immigration status. Following this, the wife was detained by the Home Office and held for a period of 2–3 months as an overstayer. On her release, the parties arranged to be married in Accra, Ghana, and this took place on 4 March 2017. It is not disputed that their marriage was conducted in apparent accordance with local domestic/tribal custom; the wife was not physically present for the marriage (she was actually in England at the time) although the husband was present. He told me that he took no actual part in the marriage (“I was not allowed to speak. it was my family who contracted the marriage for me”); the customary marriage rites were performed on their behalf by their respective family heads and relatives. This was a first marriage for the wife and a second marriage for the husband, who has children from a former marriage.
Following the customary formalities, the marriage was registered at Ayawaso East Municipal Assembly in Ghana. I have seen the marriage certificate, and the formal statements attesting to its truth which are dated 6 June 2017.
On the evidence of both the wife and the husband, they were living in England during the years up to and including 2019. Their centre of interests was (and is) here. The wife declared in her application for a declaration of marital status that both parties were habitually resident in this jurisdiction in the year before the date of her application; I am satisfied that this was so, and indeed there is no reason to doubt that they remain so habitually resident.
The marriage proved not to be a happy one; it is unnecessary for me to rehearse here the cross-allegations of behaviour of the parties which do not bear upon the central issue. A material dispute arises between the parties about the date on which they separated. The husband asserts it was in December 2018. The wife maintains that it was not until 10 September 2019; she says that she only left after the husband's adult daughter Caroline arrived to stay. Caroline has filed a statement asserting that she has never met the wife. The issue is of some significance because it is the wife's case that the parties were still living together as husband and wife in the matrimonial home at the time when the husband asserts that they went through the alleged Ghanaian customary divorce. There is evidence, which I reference later, that the wife was living at [Address B] in the spring of 2019, while the husband continued to live at [Address A], the former matrimonial home.
It is the husband's case that on 25 August 2019, members of the parties' extended families came together in Ghana, at the home of the wife's father, and agreed, in according with custom, that the marriage should come to an end. The husband goes on to assert that the customary divorce was subsequently formally registered as such. The formal signed registration of divorce document (dated 6 September 2019) specifically (and to my mind importantly) references that Mr Brifa was living at [Address A] and Ms Brifa was living separately at [Address B]. I have been shown letters from the Second Deputy Judicial Secretary of the Judicial Service in Ghana (26 September 2019) and from the Ghanaian consulate in London (10 December 2019) which both confirm the authenticity of the documents which comprise the registration of the divorce.
The husband's case is that he personally handed a copy of all of the Ghanaian divorce registration documents to the wife on 19 March 2020, and informed her that he would advise the Home Office of their change of marital status on the following day. The husband's case is that the wife responded by asking him not to tell the Home Office as this would “not help” her immigration status; he added:
“… she requested of me another divorce here in the United Kingdom since the date of the divorce from Ghana would be a problem in retaining her residential permit here in the United Kingdom, but I refused and said we cannot annul the same marriage twice and that will amount to illegality.”
The wife denies the conversation and claims that she first saw any Ghanaian divorce documentation on 25 October 2020 when it was produced within her English divorce proceedings.
Five days after this alleged conversation, on 24 March 2020, the wife submitted a petition for divorce at the Family Court at Bury St Edmunds. She alleged unreasonable behaviour as her ground for divorce. The husband filed a ‘Response’ document (30. 3.2020) in which he alleged that the divorce had already taken place in Ghana, and that the date of the dissolution, purported to be in the presence of both families, “with all tribal rites performed”, was 25 August 2019; he also filed an ‘Answer’ (albeit out of time, on 9. 4.2020) contesting the allegations of unreasonable behaviour.
The husband's case was set out thus:
“… a statutory declaration was once again declared on our behalf before a Notary Public by our family representatives (in accordance with Ghanaian law) and later registered with the Customary Marriage and Divorce Registry where a Divorce Certificate was again issued as it was done with the Marriage Certificate. The Divorce Certificate was certified and attested by both the Judicial Service and Foreign Ministry of Ghana in September 2019.… When I finally received the divorce certificate, I sent it to the Ghana Consulate here in the United Kingdom so they could attest the document brought in from Ghana as the law demands.”
The wife's case is that she has never been a party to any divorce proceedings in any court other than those currently before the...
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Nazia Parveen v Assim Balal Hussain
...This outcome would now be the same under the provisions of section 50 of the FLA 1986. 62 We were also referred to Botwe v Brifa [2022] 1 FLR 784 in which Cobb J decided that a customary divorce in Ghana, although effective there, was not entitled to recognition in England and Wales under t......