Marina Ivleva (formerly Yates) v John Yates
| Jurisdiction | England & Wales |
| Judge | Mr Justice Peter Jackson |
| Judgment Date | 04 March 2014 |
| Neutral Citation | [2014] EWHC 554 (Fam) |
| Docket Number | Case No: LE13D00728 |
| Court | Family Division |
| Date | 04 March 2014 |
[2014] EWHC 554 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
The Honourable Mr Justice Peter Jackson
Case No: LE13D00728
Both parties appeared in person (the husband accompanied by a McKenzie Friend)
Hearing date: 28 February 2014
Judgment date: 4 March 2014
By an application dated 18 December 2013, Marina Ivleva (formerly Yates) seeks (i) recognition in this jurisdiction of a divorce granted in Ukraine on 9 October 2013 in respect of her marriage to John Yates and (ii) the dismissal of divorce proceedings brought in this jurisdiction by Mr Yates in April 2013. Mr Yates opposes these applications. I shall refer to the parties as the wife and the husband, conscious that this begs the question of whether they are in fact still married.
The law
The application falls under Part II of the Family Law Act 1986. Section 45 sets out the scheme of the Act, which is that an overseas divorce obtained in a country outside the British Islands must be recognised in the United Kingdom if, and only if, it is entitled to recognition by virtue of ss.46 to 49, and that recognition is subject to s.51.
The provisions relevant to the present case are s.46(1) and s.51(3)(a).
46 Grounds for recognition
(1) The validity of an overseas divorce, annulment or legal separation obtained by means of proceedings shall be recognised if —
(a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; and
(b) at the relevant date either party to the marriage —
(i) was habitually resident in the country in which the divorce, annulment or legal separation was obtained; or
(ii) was domiciled in that country; or
(iii) was a national of that country.
These conditions are met in this case. Although there is no expert evidence, there is no reason to doubt that the Ukrainian divorce is effective in that jurisdiction. The wife is a Ukrainian national and also arguably domiciled there.
The provisions of s.51(3)(a) are these:
51 Refusal of recognition
(3) Subject to section 52 of this Act, recognition by virtue of section 45 of this Act of the validity of an overseas divorce, annulment or legal separation may be refused if —
(a) in the case of a divorce, annulment or legal separation 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; or
(ii) 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 effect of s.51(3)(a) has been considered in the number of first instance decisions, including the decision of Mr Jeremy Richardson QC in Duhur-Johnson v Duhur-Johnson [2005] 2 FLR 1042 at 1052:
44. It seems to me that the relevant law can be distilled into the following propositions: …
First: The power contained in section 51(3) as a whole provides for wide judicial discretion. The provisions need not be exercised if the interests of the respondent spouse (as opposed to the petitioning spouse) are met by other means (An example of this is El Fadl v El Fadl ). It seems to me that it is important to emphasise that those interests must be safeguarded. I would anticipate that this approach would only be adopted where the respondent spouse has no option under the overseas divorce law but to submit to the divorce. The important point to note is that the judicial discretion is wide and the applicability of the section will vary depending on the many and varied circumstances of each case.
Second: When considering section 51(3)(a)(i) a judge must ask whether reasonable steps have been taken by the petitioning spouse to notify the respondent spouse of the divorce proceedings in advance of them taking place.
Third: In answering that question the judge must look at all the circumstances of the case and the "nature of the proceedings" in the overseas jurisdiction.
Fourth: Whether reasonable steps to notify the other party have been taken is to be judged by English standards having regard to the nature of the overseas proceedings.
Fifth: Whether reasonable steps have been taken is a question of fact in each case (it must also be remembered that there are cases where reasonable steps have been taken but they were unsuccessful or, in rare cases, where it is entirely reasonable for no steps to have been taken).
Sixth: It is important to note that whether the respondent spouse has notice of the proceedings is not the issue. It is whether the petitioner spouse has taken reasonable steps to notify the other party. The focus of enquiry is upon the actions of the petitioning spouse not simply a question of whether the respondent spouse knew about the proceedings.
In Olafisoye v Olafisoye [2010] EWHC 3540 (Fam), Holman J said this:
33. I observe and stress at the outset the following matters. First, in this case, and probably in all such cases, the issue is very fact specific and requires an intense focus on the steps which were taken and all the circumstances of the particular case. Second, the focus under sub-paragraph (i) is not upon whether or not, or when, the respondent party actually had notice, but upon the steps which were or were not taken by or on behalf of the applicant party to give notice. In this regard, I agree with, and adopt, propositions (1) to (6) in paragraph 44 of the judgment of Mr Jeremy Richardson QC sitting as a Deputy High Court Judge in Duhur-Johnson v Duhur-Johnson (Attorney General Intervening) [2005] 2 FLR 1042 at pages 1052 to 1053, noting as I do that he had been assisted by the 'helpful, erudite and succinct' submissions of counsel on behalf of the Attorney General (see paragraph [4]).
34. Third, it is very important to keep in mind that under the sub-paragraph there are two stages in the approach of the court. First, it must make an assessment or judgment whether such steps were not taken as 'should reasonably have been taken'; but even if the court adjudges that they were not, that merely opens the door or gateway to the second stage and an overall exercise of discretion whether or not to recognise the overseas divorce… In exercising the second stage of discretion, if the gateway is open and it arises, the court should, in my view, still be very slow to refuse recognition of the decision and order of the foreign court, at any rate when, as here, it is clearly that of an independent, properly constituted court operating a procedure and applying substantive law (as is clear from the documents in this case) which substantially accords with our own. It is not simply a matter of 'comity' or respect for the foreign court. Orderly legal relationships in the international world require that, so far as possible, judicial outcomes in one country can be relied upon in all others provided there was (as here) a proper connection with the first country.
35. The effect of non-recognition here of a divorce which is valid or effective in the country where it was made is to create a so called 'limping marriage' i.e. that the parties are treated as still being married here, when they are not so treated elsewhere. That is so obviously undesirable that the court leans, so far as possible and consistent with the legislation and justice, against exercising a discretion so as to produce a limping marriage.
A related, but different, provision was considered by the Court of Appeal in Golubovich v Golubovich [2010] EWCA Civ. 810. This related to s51(3)(c), which allows the court to refuse recognition on the ground that it would be manifestly contrary to public policy. In that case an appeal was allowed against the non-recognition of a Russian divorce that followed proceedings between Russian parties in which both had taken part. As Holman J said in Olafisoye:
82 The judgment of Thorpe LJ, read as a whole, clearly emphasises (as I have myself already stressed) the gravity and undesirability of refusal to recognise a divorce granted by a foreign court of competent jurisdiction, particularly (on the facts of that case) if the foreign state is a member of the Council of Europe (even if not of the EU) and in the situation where (as in that case and in this case) the other party has a Part III remedy here.
In the present case, Ukraine is, like Russia, a member of the Council of Europe, though not of the European Union (in consequence of which the provisions of Brussels IIR do not apply). I am not here concerned with non-recognition on grounds of public policy and as far as I can see there would be no basis upon which recognition could be refused for that reason on the facts of this case.
I direct myself in accordance with the above principles and turn now to the facts. They are not significantly in dispute and, where they are, my conclusions are reached on the balance of probabilities.
The facts
The wife comes from a Crimea, an autonomous republic within the state of Ukraine. She is an ethnic Russian, holding Ukrainian, Russian and British nationality. She is now is 49 years old and has an adult son aged 26.
The husband is British. He is 58 years old. He lives in the Midlands and works in vehicle recovery. He has to all intents and purposes been working from the same business premises throughout the marriage.
In 1999, the couple met on an internet dating website. Both had been married before. The wife and her son came to England and on 6 October 2000 the parties were married here. At an earlier date a religious ceremony had taken place in Ukraine. Married...
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