Sergey Solovyev v Alexandra Solovyeva
| Jurisdiction | England & Wales |
| Judge | Sir James Munby |
| Judgment Date | 15 May 2014 |
| Neutral Citation | [2014] EWFC 1546 |
| Court | Family Court |
| Date | 15 May 2014 |
| Docket Number | Case No: FD13D03725 |
[2014] EWFC 1546
THE FAMILY COURT
(In Open Court)
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir James Munby PRESIDENT OF THE FAMILY DIVISION
Case No: FD13D03725
Mr Matthew Long (instructed by Family Law in Partnership) for the Applicant
Mr Christian Kenny (instructed by Hughmans) for the Respondent
Hearing date: 13 November 2013
Additional evidence and submissions subsequently filed and considered without further hearing
Sir James Munby President of the Family Division:
Sergey Solovyev and Alexandra Solovyeva, who for convenience and without prejudging the issue I have to determine I shall refer to as the husband and the wife, were both born in what is now the Russian Federation. They are nationals of the Russian Federation and married there in 2002. In 2012 they were living in London. The marriage, of which there are no children, had broken down. On 29 March 2012, and again on 30 April 2012, they attended at the Consulate of the Russian Federation in London and there went through the formalities for divorce required by the law of the Russian Federation.
When they left the Consulate on the latter occasion they were each in possession of an official document in the Russian language. At the top there appears the coat of arms of the Russian Federation and, immediately below (I quote from the English translation) the words "Divorce Certificate". The document reads in material part as follows (there are slight differences, none material, between the translations of the two documents; I set out the translation of the husband's document, any differences in the translation of the wife's document are shown in { … }:
"The marriage between" – details of each of the parties' names, citizenship and nationality, date and place of birth are then set out – "has been {was} dissolved on the 30.04.2012 thirtieth day of April in the year two thousand and twelve by the spouses' mutual consent {on the basis of mutual decision of the spouses} dated 29 March 2012
This divorce has been recorded {and the entry thereof was duly made} in the register of divorces on 30 April 2012 entry {under} no 1.
…
Place of {State} registration: Consulate of the Embassy of the Russian Federation to the United Kingdom of Great Britain and Northern Ireland
This certificate is issued to [name of husband] {name of wife}
Date of issue: 30 April 2012
Head of the civil registration office: [signature] D S Rybakov"
At the foot of the document there is a circular ink stamp "The Russian Embassy in Great Britain Consulate No 1".
There is no doubt that, by the time they left the Consulate on 30 April 2012 in possession of these documents, the husband and the wife had been divorced in accordance with the law of the Russian Federation. The question I have to determine is whether that divorce is recognised under the law of England and Wales. In my judgment, it is not. So far as concerns both England and Wales (and indeed, as we shall see, the entire United Kingdom) they remain married.
The wife has since remarried, in the United State of America. She remains in the United Kingdom with her new husband on a spousal visa. So it would seem that the United Kingdom immigration authorities at that stage accepted the validity of the divorce. Subsequently, however, when the husband sought to marry his fiancée here, the authorities took the point that the divorce was not recognised (see a letter from the General Register Office dated 15 May 2013). She has, in consequence, had to leave the country, at least temporarily.
On 12 September 2013 (the application was not formally issued until 7 November 2013) the husband applied for a declaration of marital status. The application was served on the Attorney General in accordance with FPR 2010, rule 8.21 by letter dated 17 September 2013. On 1 October 2013 the Treasury Solicitor wrote confirming that the Attorney General did not intend to intervene.
Perhaps somewhat optimistically, on 31 October 2013 the application was put before the urgent applications judge, Roderic Wood J, in the form of a draft order seeking the necessary declaration by consent. He adjourned it for hearing before me on 13 November 2013. The husband was represented by Mr Matthew Long and the wife by Mr Christian Kenny, who made common cause in seeking to persuade me that the divorce ought to be recognised. As had previously been indicated, the Attorney General did not appear and was not represented.
By the end of the hearing I was far from persuaded that I could grant the declaration being sought. I adjourned the hearing so as to enable the parties, if they wished, to adduce further evidence. I indicated that, if they were content (as they were), I would consider any additional material without the need for a further hearing. I subsequently received a witness statement of the husband and further written submissions from Mr Long to supplement those he had put before me previously.
I now hand down judgment. In accordance with the then practice, the application was made to, and the hearing before me on 13 November 2013 took place in, the Family Division of the High Court. In accordance with articles 2 and 3(1) of The Crime and Courts Act 2013 (Family Court: Transitional and Saving Provision) Order 2014, SI 2014 No. 956, the proceedings have continued on and after 22 April 2014 in the Family Court as if they had been issued in that court. It is accordingly in the Family Court that I now sit to give judgment.
The application was supported by expert evidence as to the relevant law of the Russian Federation. The evidence was in the form of an expert's report, dated 11 September 2013 and written in English, by Dr Ekaterina Kalashnikova. She describes herself as a Doctor of Law and a barrister, having been a member of and practising at the Moscow Bar since 2000. She deposes to being familiar with the practices of divorce in Russia and (as her report bears out) fluent in both spoken and written English. Her report is, if I may say, very clear.
So far as material for determining the only issue before me, the salient parts of Dr Kalashnikova's report on the relevant law of the Russian Federation can be summarised as follows:
i) Dissolution of marriage is governed by Chapter IV of the Family Code of the Russian Federation. Where two conditions are satisfied, that is, there are no minor children of the relationship and the parties have reached a mutual agreement to divorce and make a joint application, the procedure is administrative, not judicial.
ii) Administrative divorce is performed at the Civil Acts Registration Office. The competent authority to deal with the divorce of Russian citizens residing abroad is the Russian Consulate Office or other Diplomatic Mission in the relevant state. The procedure in both cases is exactly the same.
iii) The sole ground for divorce under Russian law is the irretrievable breakdown of the marriage. Where both spouses sign a joint divorce application, the irretrievable breakdown of the marriage is presumed.
iv) "The marriage is terminated by way of the registration of divorce after the expiry of a period of one month after the date of application if, and only if, neither of the parties has withdrawn their consent to dissolve the marriage."
v) Upon registration of the divorce, each party is issued with a Divorce Certificate.
vi) If the administrative procedure is followed, "the marriage is considered to be legally dissolved on the day the divorce is recorded in the Register of Civil Acts." Moreover, "divorce registration is done only once by either a Civil Acts Registration Office or a Consulate Office. No further registration is prescribed or required by Russian law."
Having examined the documents in the present case, in particular the Divorce Certificate handed to the husband on 30 April 2012, Dr Kalashnikova expresses her opinion as follows:
i) The Divorce Certificate satisfies all the requirements of a valid divorce certificate.
ii) The divorce between the parties was "obtained by means of administrative procedure carried out by the Consulate Office of Russia in the UK."
iii) The divorce was "performed in compliance with the procedure prescribed by law by the competent authority, the Consulate Office of Russia."
iv) The divorce "was granted on 30 April 2012 and has been effective since that date", since when "it was opened [sic] to the parties to enter into a new marriage."
v) The Divorce Certificate is "the final proof of the fact of the parties' divorce status and no further registration of the divorce is required under the Russian law to give effect to the marriage termination."
By way of supplement to the expert evidence given by Dr Kalashnikova, and entirely consistent with it, is the husband's evidence of what he was told when he visited the Consulate immediately after the hearing before me. Apparently no enquiries would have been made or sent by the Consulate to any official body in the Russian Federation between the dates of the parties' two visits to the Consulate in March and April 2012. A paper and electronic record of what occurs in the Consulate is kept there. The Consulate, however, regularly sends its records to a central archive in Moscow. The husband's mother was able to obtain from the Archive and Information Department of the Civil Registry Office Directorate of Moscow City on 19 November 2013 a 'Certificate of Dissolution of Marriage' showing that the documents in the present case had been received from the Consulate in London on 28 March 2013.
Against this background I turn to consider the law, that is, the law of England and Wales. The relevant provisions are to be found in Part II of the Family Law Act 1986. Section 44(1) so far as material provides that:
"… no divorce … obtained in any part of the...
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