Olafisoye v Olafisoye

Recognition of an overseas divorce under section 51(3)(a)(i) of the Family Law Act 1986 involves two stages. The court must first decide whether reasonable steps were taken to notify the other spouse, focusing on the steps taken rather than merely on actual notice. If that gateway is established, the court retains a discretion whether to recognise the divorce. The inquiry is fact-specific. Although recognition should generally be approached cautiously, deliberate concealment, misleading conduct and notice given only after evidence has been heard may justify refusal because the other spouse was denied a fair and timely opportunity to participate. The court should also avoid creating a limping marriage where possible.

The wife sought an English divorce. The husband relied on a dissolution pronounced by the Grade A Customary Court, Apapa, Lagos State, on 20 June 2005, contending that the parties were no longer married. The court assumed, for the purposes of the hearing, that the Nigerian divorce was effective under Nigerian law, because neither party had provided adequate expert evidence on that issue.

The central question was whether recognition should nevertheless be refused under section 51(3) of the Family Law Act 1986, principally because reasonable steps had not been taken to notify the wife of the Nigerian proceedings.

1. Two-stage approach. The court held that section 51(3)(a)(i) requires, first, an assessment whether reasonable steps were taken to give notice, having regard to the nature of the proceedings and all the circumstances. If that gateway is open, the court must then exercise a separate discretion whether to recognise the overseas divorce. The judge adopted the propositions in Duhur-Johnson v Duhur-Johnson [2005] 2 FLR 1042.
2. The issue is intensely fact-specific. The statutory focus is on the steps taken by or for the applicant to give notice, rather than simply on whether the respondent eventually acquired actual knowledge. The wife’s evidence was accepted. The husband knew, or could readily have discovered, her whereabouts but took no effective steps to serve her before the Nigerian court had heard his evidence.
3. Service on 15 June 2005, after the evidence had been given and when judgment was imminent, was insufficient. The husband and his solicitors had also concealed the proceedings and provided misleading information about their progress. This deprived the wife of a fair and timely opportunity to seek relief in England or to make a properly prepared application in Nigeria.
4. The discretion to refuse recognition should ordinarily be exercised sparingly. International legal order favours recognition of effective foreign divorces, and the court should avoid creating a limping marriage. Those considerations were outweighed here by the deliberate concealment and procedural unfairness. The wife’s lack of a substantive defence to divorce and possible Part III remedies did not cure the denial of a proper opportunity to participate.
5. Section 51(3)(a)(ii) added no separate gateway on these facts because the alleged lack of opportunity arose from lack of notice. The judge distinguished Golubovich v Golubovich [2010] EWCA Civ. 810, which concerned public-policy refusal where both courts and both parties were aware of concurrent proceedings and there were no comparable procedural deficiencies in the foreign proceedings.
6. Recognition of the Nigerian divorce was refused under section 51(3). The marriage therefore remained subsisting in English law, and the court proceeded to hear the wife’s English divorce petition. No discretionary stay under paragraph 9 of Schedule I to the Domicile and Matrimonial Proceedings Act 1973 was considered or ordered.