The English court has made it clear in Lachaux v Lachaux [2019] that foreign divorces will not be readily ignored. In this Court of Appeal ruling, Moylan refused to grant the wife’s appeal of Mostyn J’s decision to recognise a Dubai divorce. To this end, the English court did not have jurisdiction to advance the wife’s divorce and children proceedings as the Dubai decree was deemed valid. In his judgement, Moylan LJ provided a helpful framework in which advocates by better prepare their clients to argue non-recognition of a foreign divorce on the basis of the public policy exception.
This case concerned a foreign divorce, in which the Dubai court granted H’s petition on the grounds that W “did not obey” H. H was also granted custody of the parties’ only child, L, on the basis that W was found to have kidnapped the child from March 2012 – October 2013.
W applied for divorce in England in 2015 and decree absolute was pronounced on 18 April 2016. In subsequent proceedings, W argued that the Dubai divorce should not be recognised by the English court under s51(3) of the Family Law Act 1986 (“FLA 1986”). It followed, on W’s case, that the English court therefore had the power to make Children Act 1989 (“CA 1989”) orders, and could thus make an order enabling W to have contact with L.
At first instance, Mostyn J concluded that he was “satisfied…that the Dubai court gave the mother much latitude” such that the grounds for refusing recognition under s51(3) FLA 1986 were not made out. More specifically: (1) W had had a “full opportunity” to participate in the proceedings; (2) reasonable steps had been taken to give W notice of the proceedings; and (3) it would not be against public policy to recognise the divorce. Mostyn J also determined that, even if she had been entitled to bring divorce proceedings in England, W would not have satisfied that requirement in s(1)(b)(i) CA 1989, that the CA 1989 application is “made either in or in connection with, her divorce proceedings”.
W’s subsequent appeal was resolutely rejected by Moylan J. He determined that Mostyn J was entitled to conduct his own research into Dubai law and subsequently decide that W had had a “full opportunity to participate” in those proceedings. Moylan J also refused to engage the public policy exception on the grounds that it has a “high threshold”. He helpfully set out what factors the court should apply when considering public policy arguments. These factors include:
The strength of the connection between the country in which the divorce was granted and the parties – the stronger the connection, the less likely the public policy exception will apply;
The impact on those rights of the divorce being recognised; and
The reasons for the spouse obtaining the divorce in the other country
his guidance tallies with old case law where the presence of one or more of these factors satisfied the court that they had jurisdiction not to recognise a foreign divorce. Consider, for example, Joyce v Joyce [1979], where a Canadian divorce was not recognised because (1) the parties had spent their entire married life in England; and, (2) recognition the divorce would have severely adverse financial consequences for the wife. Further, in Chaudhury v Chaudry [1985], the Court of Appeal refused to recognise a foreign divorce in circumstances where it was held that the sole purpose for the husband’s petitioning for divorce in Kashmir was to defeat the wife’s financial claim in England.
This decision has highlighted that the s51(3) FLA 1986 grounds for non-recognition of foreign divorces, and in particular the public policy exception, will not to be readily engaged.