Liaw v Lee

Recognition of an overseas divorce may be refused where the respondent received neither reasonable notice nor a reasonable opportunity to participate in the proceedings. Under section 51(3)(a) of the Family Law Act 1986, the court must assess the steps taken by the petitioner against English standards, including applicable European standards, while having regard to the nature of the overseas proceedings and all the circumstances. The court retains a broad discretion after the statutory threshold is met. That discretion may properly be exercised to refuse recognition where recognition would reward dishonesty or sharp practice and would produce manifest injustice, despite the general undesirability of inconsistent marital-status decrees.

The wife and husband were married in Singapore and had lived in England. The wife began divorce proceedings in England, of which the husband was aware. While those proceedings remained pending, the husband obtained a divorce in Malaysia. The Malaysian court dispensed with service, and the decree nisi was made absolute immediately.

The wife sought refusal of recognition of the Malaysian decrees. The central questions were whether she had received reasonable notice and a reasonable opportunity to participate, and whether, if the statutory conditions were met, recognition should be refused in the circumstances.

1. Statutory threshold. The wife was given no notice of the Malaysian proceedings and no opportunity to participate. The Malaysian divorce was obtained in default of her appearance, without service in sufficient time or in a manner enabling her to arrange a defence. She had not accepted the decrees unequivocally. The requirements identified in section 51(3)(a) of the Family Law Act 1986 were therefore satisfied.
2. Applicable approach. The interpretation of section 51(3) should be informed by the judicial interpretation of article 22(b) of Council Regulation (EC) No 2201/2003. The relevant inquiry concerns the petitioner’s steps to notify the respondent, judged by English standards, including applicable European standards, with regard to the nature of the foreign proceedings and all the circumstances. The approach in Duhur-Johnson v Duhur-Johnson was adopted and applied.
3. Discretion. Satisfaction of the threshold did not make refusal automatic. The court considered the undesirability of inconsistent decrees relating to marital status and the availability of financial relief under Part III of the Matrimonial and Family Proceedings Act 1984. Those considerations were outweighed by the compelling injustice of recognising a divorce obtained through a knowingly false petition, misleading evidence concerning service and spurious expedition of the decree absolute. Recognition would effectively reward sharp practice and undermine public justice.
4. The Malaysian decrees nisi and absolute dated 1 April 2014 were refused recognition. The stay on the English proceedings was lifted, and the wife was authorised to proceed to make absolute the English decree nisi dated 1 September 2014. A copy of the judgment was directed to be supplied to the Malaysian judge.