Re Rapisarda v Colladon; 180 Irregular Divorces
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 30 September 2014 |
| Neutral Citation | [2014] EWFC 35 |
| Docket Number | Case No: AL11D00099 and 179 other petitions |
| Court | Family Court |
| Date | 30 September 2014 |
[2014] EWFC 35
THE FAMILY COURT
(In Open Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: AL11D00099 and 179 other petitions
In the matter of 180 Irregular Divorces
Mr Simon P G Murray and Mr Thomas Collins (instructed by the Treasury Solicitor) for the Queen's Proctor
Ms Tina Villarosa (instructed under the Direct Public Access scheme) for the parties in AL11D00099 (Rapisarda v Colladon)
Hearing dates: 9–10 April 2014
Further submissions lodged 4 June 2014
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
This judgment was delivered in open court
Sir James Munby, President of the Family Division:
I have been hearing applications by the Queen's Proctor to dismiss a large number of divorce petitions and also, in many of the cases, to set aside decrees of divorce (some nisi, some absolute) obtained in consequence of what can only be described as a conspiracy to pervert the course of justice on an almost industrial scale.
Altogether I have in front of me 180 petitions for divorce, issued on a variety of dates between August 2010 and February 2012 inclusive with the exception of one, La Marca v Prestieri BY12D00274, presented to the Barnsley County Court on 20 July 2012 and issued on 27 July 2012. They were presented to and issued in a huge number of different county courts – 137 in all – ranging, alphabetically from Aldershot to York and geographically across the length and breadth of England and Wales, from Truro in south-west England to Canterbury in south-east England, Haverfordwest in south-west Wales, Llangefni in north-west Wales, Carlisle in north-west England and Newcastle in north-east England. Most of these county courts handled only one of these petitions, some had two petitions and two (Reigate and Peterborough) had three.
In the circumstances, and bearing in mind in particular that this judgment will be read by many unfamiliar with our court system, I think it important to give a judgment more detailed in some respects than might otherwise be appropriate.
By way of preliminary, I should explain that within the United Kingdom there are three separate legal systems. Scotland and Northern Ireland each has its own legal system. I am sitting as a judge of the courts of England and Wales (what for convenience I shall refer to as "the English court") applying the law of England and Wales (what for convenience I shall refer to as "English law").
This judgment is divided into a number of sections. First, I deal with the law and practice applicable to divorce proceedings in the English court. Secondly, I deal with the law and practice applicable to the applications before me. Thirdly, I deal in some detail with the facts of the cases I am being invited to consider. Next, I set out the history of the current litigation, before setting out and explaining my conclusions. Finally, I deal with one case, Rapisarda v Colladon AL11D00099, which for reasons that will become apparent in due course requires to be considered separately.
English law: divorce proceedings in the English court
An application for divorce is made in the English court by an originating process called a petition. The person applying for divorce is called the petitioner; the other spouse is called the respondent. An order for divorce is called a decree. The first decree is called a decree nisi: it is a provisional order which does not itself terminate the marriage. The second decree is called a decree absolute: it is a final order which brings the marriage to an end.
The first thing I must consider is the jurisdiction of the English court in matters of divorce. For reasons which will become apparent in due course, it is important to distinguish two different senses in which the word jurisdiction is used. The first, what I will call "jurisdiction to entertain the petition", goes to the logically prior question of whether the English court has any jurisdiction at all to receive, hear and consider the petition. The other, what I will call "jurisdiction to grant a decree", goes to the question of whether the English court, assuming that it has jurisdiction to entertain the petition, has jurisdiction to grant a decree of divorce. I will consider these in turn.
Jurisdiction to entertain the petition is conferred by section 5(2) of the Domicile and Matrimonial Proceedings Act 1973:
"The court shall have jurisdiction to entertain proceedings for divorce … if (and only if) –
(a) the court has jurisdiction under the Council Regulation; or
(b) no court of a Contracting State has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun."
The Council Regulation is defined in section 5(1A) as meaning:
" Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility."
So far as is material for present purposes, Article 3 of the Council Regulation provides as follows:
"1 In matters relating to divorce … jurisdiction shall lie with the courts of the Member State
(a) in whose territory:
– the spouses are habitually resident, or
– the spouses were last habitually resident, insofar as one of them still resides there, or
– the respondent is habitually resident, or
– in the event of a joint application, either of the spouses is habitually resident, or
– the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
– the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her "domicile" there;
(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the "domicile" of both spouses.
2 For the purpose of this Regulation, "domicile" shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland."
In each of the cases before me jurisdiction was sought to be founded in accordance with, in most of the cases, the fifth or, in a small minority of the cases, the third limb of Article 3.1(a). So, in every case it was being asserted that either the applicant (the petitioner) or the respondent was habitually resident in England and Wales.
I should add that at all material times the relevant rules of court provided that a petition could be presented to "any divorce county court" (see rule 2.6(1)(a) of the Family Proceedings Rules 1991 and, with effect from 6 April 2011, rule 7.5(1) of the Family Procedure Rules 2010), that is, to any county court so designated by the Lord Chancellor pursuant to section 33(1) of the Matrimonial and Family Proceedings Act 1984. A very large number of county courts were so designated. Section 33(2) provided that the jurisdiction of a divorce county court "shall be exercisable throughout England and Wales." The effect of these provisions – and this is what enabled the fraudulent conspiracy I am considering to go on for so long without being detected – was that a petition could be filed in any divorce county court irrespective of the address of either the petitioner or the respondent. As is apparent from what I have already said, the architects of the fraud made the maximum use of this facility, spreading the 180 petitions very thinly across a large number of county courts throughout the length and breadth of England and Wales.
Jurisdiction to grant a decree, assuming that the English court has jurisdiction to entertain the petition, depends upon section 1 of the Matrimonial Causes Act 1973, which so far as material for present purposes provides as follow:
"(1) … a petition for divorce may be presented to the court by either party to a marriage on the ground that the marriage has broken down irretrievably.
(2) The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say –
(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) that the parties of the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition … and the respondent consents to a decree being granted;
(e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition …"
The petitions in the cases with which I am concerned were based on section 1(2)(d).
The procedure on a divorce petition depends upon whether or not the petition is defended (opposed). Petitions which are not defended are dealt with in accordance with what is called the "special procedure": see rules 2.24(3) and 2.36 of the 1991 Rules and, with effect from 6 April 2011, rules 7.19 and 7.20 of the 2010 Rules. Two aspects of the special procedure need mention. Rule 2.24(3) of the 1991 Rules required the petitioner to file an affidavit – a sworn statement – setting out...
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M v P (Queen's Proctor intervening)
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