Hermens v Hermens & Anor

A false address in a divorce petition may amount to material deception even where the petitioner may otherwise have satisfied the jurisdictional requirements. The court must protect the integrity of divorce proceedings because a decree permanently changes the parties’ status. Where material deception has procured the decrees, the decrees must be set aside. A petition tainted by material irregularity should ordinarily be dismissed, leaving the petitioner free to issue a fresh petition in proper form.

The Queen’s Proctor applied to dismiss a divorce petition and set aside the decree nisi and decree absolute obtained by Tom Theo Hermens against Elisaveta Nikolaeva Hermens. The petition stated that both parties lived at a London address which was in fact only a mailbox. It also asserted that both parties were habitually resident in England and Wales. The petitioner accepted the false statements but argued that he may otherwise have had jurisdiction to present the petition and that the address had been regularly used for correspondence.

The Queen’s Proctor relied on the principles stated in Rapisarda v Colladon [2014] EWFC 35 and reaffirmed in Grasso v Naik and Bhatoo and twenty other petitions [2017] EWHC 2789 (Fam). The central issues were whether the false address materially deceived the court and, if so, whether the petition should remain alive.

1. Material deception. The court accepted the analysis in Rapisarda v Colladon [2014] EWFC 35. A decree may be void for fraud where the court has been materially deceived into accepting that it has jurisdiction to entertain the petition, and may also be void where serious procedural irregularity has concealed the proceedings from the respondent.
2. A divorce petition permanently changes the parties’ status if it results in a decree. As a matter of public policy, its particulars must be true, supported by affidavits attesting to their truth. The deliberate presentation of a mailbox as the address where the parties last lived together, and where they then resided, was a material deception. The same conclusion applied even on the assumption that the petitioner was habitually resident in England and Wales and that the court therefore had jurisdiction to entertain the petition.
3. The reasoning in Rapisarda v Colladon [2014] EWFC 35 was applied to the present facts. The court also treated Grasso v Naik and Bhatoo and twenty other petitions [2017] EWHC 2789 (Fam) as confirming the same approach to proceedings tainted by deception concerning an address.
4. The decree nisi and decree absolute were set aside. The petition itself was so tainted by material irregularity that allowing it to proceed would offend public policy. It was therefore dismissed. The petitioner remained free to file a fresh petition in proper form.

This was a first-instance application. The Queen’s Proctor was permitted to intervene on 6 September 2017, followed by directions for a full hearing on 15 December 2017.