So Youn Kim v Anthony Thomas Morris
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE PARKER,THE HONOURABLE MRS JUSTICE PARKER DBE |
| Judgment Date | 02 May 2012 |
| Neutral Citation | [2012] EWHC 1103 (Fam) |
| Docket Number | Case No: FD06D00547 |
| Court | Family Division |
| Date | 02 May 2012 |
[2012] EWHC 1103 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
PRINCIPAL REGISTRY
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Parker DBE
Case No: FD06D00547
Robert Peel QC (instructed by Bross Bennett LLP) for the Petitioner Wife
Timothy Amos QC and Duncan Brooks (instructed by Farrer and Co) for the Respondent Husband
Hearing dates: 17/18 October 2011
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.
The issues in this case are:—
i) Whether an unopposed decree nisi of divorce on the wife's petition granted in 2006, based on H's adultery, and followed by over four years of reconciliation and cohabitation, should now be made absolute, on W's opposed application;
ii) If it is not, whether the decree should be rescinded;
iii) If the decree nisi is rescinded, whether W should have permission to file a supplemental petition.
iv) Should the petition be dismissed?
H now lives in Singapore and W in Hong Kong. H wishes to proceed on the basis of divorce proceedings issued by him in Singapore.
If W could establish jurisdiction here then there would be no bar to her presenting a fresh petition. But in that event she would face the argument that the Singapore proceedings were first in time. As was said at the directions hearing before District Judge Robinson in March 2011 "she needs a 2006 number".
This case presents a number of problems and has been argued before me in detail and with considerable erudition.
Each of the parties sees financial advantage to them as to their jurisdiction of choice. It is submitted to me on behalf of W that there may be some difficulties for her in making an application under Part III of the Matrimonial Family and Proceedings Act 1994 if a decree is pronounced in H's Singapore proceedings or any potential proceedings which W may wish to institute in Hong Kong. I have not heard any argument about this.
There are no children of the marriage.
History
W is of South Korean origin and was born in the USA, and grew up in South Korea and in the USA. She has US nationality. She has no enduring links with this jurisdiction. H was born in England and has lived and worked here and has British nationality. The parties were married in Seoul on 20 April 2003. The parties lived and were undoubtedly habitually resident in England during their marriage.
W issued her petition out of the Principal Registry of the Family Division (PRFD) on 31 January 2006, and relied on the parties' habitual residence in England as the basis of jurisdiction. The decree nisi was granted unopposed on 12 April 2006.
The first appointment set for 19 May 2006 (H but not W having issued a Form A, but W having made a claim for all forms of ancillary relief in her petition) was vacated by consent, with H's Form A to stand dismissed if neither party applied to restore the hearing by 1 September 2006. By July 2006 the parties had reconciled and resumed cohabitation at their home in Essex. In 2008 H took up a job with a financial institution in Singapore (he says on 21 February 2008) and moved to live there and W joined him shortly afterwards. They sold their home in England. They have not lived here since.
It is unclear precisely when final separation took place as W took up a job in Hong Kong in August 2010 on a six months contract: it seems that the parties spent little time together from August 2010. W's case is that H abusively told her to get out of the house in December 2010. H's case is that W finally told him that she did not wish to remain married to him in late 2010 or early 2011. Even though they were not physically under the same roof after August 2010, it seems to me that their post decree nisi cohabitation and reconciliation is to be regarded as having continued uninterruptedly for something over 4 years.
W has no plans to return to England. H continues to live in Singapore and claims now to be domiciled there.
The parties agree that the marriage has now broken down irretrievably and each wishes to be divorced. W consulted solicitors in England and her Form A was issued and served on H. W's solicitors invited H to agree to an early exchange of information with a view to negotiating a settlement.
On 18 February 2011 W served on H an application for the decree to be made absolute together with an affidavit purporting to explain the delay of more than 1 year since decree nisi as required by Rule 2.49 of the FPR 1991 (then in force). Under those rules there was no requirement for W to serve her application on H but her solicitors considered it prudent to do so. A hearing was set for 16 March 2011.
After exchange of some holding letters H's solicitors wrote on 28 February 2011 contending that the parties' reconciliation post decree nisi required the decree to be rescinded and that W's petition and consequential claims including for financial ancillary relief should be dismissed.
On 14 March 2011 H's solicitors wrote that H declined to accept a compromise proposed by W whereby the decree should be rescinded by consent on the basis that H agreed that W should be permitted to issue a supplemental and/or second petition in England.
Thus on the same day W issued formal applications seeking (i) rescission of the decree nisi (ii) leave to file a supplemental petition (iii) leave to file a second petition.
Also on 14 March 2011 H's solicitors stated that H had on that day issued divorce proceedings in Singapore based on W's alleged behaviour, the basis of jurisdiction being his asserted habitual residence in Singapore for three years preceding the presentation of the petition.
At the hearing on 16 March, now utilised for directions, DJ Robinson transferred W's applications to the High Court on a two day estimate, and provided for the parties to file statements and gave other case management directions.
The Queen's Proctor has declined to intervene although invited to do so by DJ Robinson.
The Family Procedure Rules 2010 ('the 2010 Rules') came into force on 6 April 2010, superseding, save as provided by the transitional provisions, the Family Proceedings Rules 1991 ('the 1991 Rules').
By agreement the Singapore divorce proceedings have been stayed pending the outcome of this hearing.
I have read the transcript of the hearing of 16 March 2011, the parties' statements, and the relevant divorce petitions issued and proposed in this jurisdiction and the writ for divorce issued in Singapore, and the correspondence between solicitors in this jurisdiction.
I heard submissions over two days, and have read counsel's written submissions; including additional written submissions prepared overnight between the first and second days, and have been referred to a number of authorities.
Costs to date are: W £44, 174; H: £85, 540.10; the difference being accounted for, I am told, by the fact that W's solicitors are not based in central London whereas H's are.
The parties' evidence
Neither party has adduced any evidence as to what if any discussion took place between them as to the existence of the decree nisi and its perceived effect on their marital status.
In her statement W asserts that she reconciled with H because she believed him when he said that he would treat her well and that he would be faithful to her, but that he continued to have affairs throughout their relationship and that the marriage had been a "sham" from the date of the reconciliation until final parting. H strenuously denies this.
H pleads in his Singapore proceedings that the marriage has broken down as a result of W's behaviour on the basis that she left him without cause. She denies this.
In the light of H's denials I am simply not in a position to proceed on the basis that H continued to commit adultery throughout the period after the reconciliation. I note that W is wholly unspecific as to how and when she discovered this alleged adultery, or her claim that "from Spring 2010 it became obvious that (H) was again conducting affairs with several women, that these affairs had been ongoing throughout the attempted reconciliation, and that these affairs are continuing". I note also that W makes the assertion of the continuing affairs in order to explain and justify her application to make the decree absolute in spite of the delay. In his statement H describes a full reconciliation rather than an attempted reconciliation. It may be that his assertion that he was faithful to W throughout the period of reconciliation is to be read as containing an implied admission that he has not been faithful to her thereafter. But if so this does not go the issue of the explanation for the delay. In any event, for the reasons set out below, I do not think that any of this truly affects the exercise which I have to conduct.
After a full discussion between me and counsel as to the lack of information to explain their parties' position further, and the possible implications, and counsel considering this overnight, each declined to call oral evidence, either by way of supplementation of their statements, or cross-examination: they submitted that this was not required.
Issues for determination
The parties agree that four issues arise for determination. They are:
a. Is there an absolute ban on granting a decree absolute because of the terms of s 2 (1) MCA 1973;
b. If there is no absolute bar, should the court exercise its discretion (to which I would add, and are the provisions of s 2 (1) relevant to the exercise of the discretion) to grant a decree...
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