Ivleva v Yates

Recognition of an overseas divorce may be refused where the applicant failed to take reasonable steps to notify the other spouse, even though the divorce is valid in the country where it was obtained and recognition would avoid a limping marriage.

The court must first decide whether reasonable notification steps were taken, having regard to the nature of the foreign proceedings and all the circumstances. If that gateway is not satisfied, the court retains a discretion. That discretion is informed both by international comity and by basic fairness. Avoiding inconsistent marital status is important, but it does not justify recognition where the applicant obtained the foreign divorce effectively in secret while participating in related proceedings in England.

The wife applied under Part II of the Family Law Act 1986 for recognition of a Ukrainian divorce granted by default on 9 October 2013. She also sought dismissal of the husband’s English divorce proceedings.

The husband had received no direct notice of the Ukrainian proceedings. The wife had means of contacting him, was participating in related English proceedings and provided information about the Ukrainian divorce only after the Ukrainian judgment had been made and was effectively too late for him to participate.

The central issues were whether reasonable steps had been taken to give notice under section 51(3)(a)(i), and, if not, whether recognition should nevertheless be granted.

1. Applicable statutory scheme. Under Part II of the Family Law Act 1986, an overseas divorce must be recognised only if it satisfies sections 46 to 49 and is not refused under section 51. The conditions in section 46(1) were satisfied because the wife was Ukrainian and there was no reason to doubt the divorce’s effectiveness under Ukrainian law.
2. Notification gateway. The inquiry under section 51(3)(a)(i) concerns the steps taken by the applicant to notify the other spouse, not merely whether the spouse actually knew of the proceedings. The assessment is fact-sensitive and must consider the nature of the foreign proceedings and all the circumstances. English standards are applied while allowing for the nature of the foreign procedure.
3. Two-stage discretion. The court first decides whether reasonable steps should have been taken and were taken. If the gateway is not satisfied, the court must then exercise an overall discretion whether to recognise the divorce. Recognition will ordinarily be approached cautiously where the foreign court was independent and properly constituted, and the court should be alert to the undesirable creation of a limping marriage. Those considerations do not exhaust the discretion. Basic fairness and plain dealing remain material.
4. Application. The wife had several available means of communicating the Ukrainian proceedings to the husband, including email, telephone, his workplace, his solicitors and the English court. She instead allowed the Ukrainian court to proceed on the incorrect basis that he could not be found. She therefore failed to take reasonable steps to give notice. The husband was deprived of any realistic opportunity to participate, and the wife’s conduct outweighed the pragmatic considerations favouring recognition.
5. Section 48. There was no conclusive presumption arising from findings in the Ukrainian proceedings because the husband had not taken part in them. In any event, the facts rebutted the proposition that he could not be served.
6. Order. Recognition of the Ukrainian default divorce was refused. The marriage remained subsisting under English law. The stay on the husband’s English petition was lifted and the matter was remitted to the County Court for decree nisi to be pronounced at the earliest opportunity.

First-instance decision. The matter was transferred from the County Court to the High Court, which refused recognition of the Ukrainian divorce, lifted the stay on the husband’s English petition and remitted the matter to the County Court.