Lachaux v Lachaux

An overseas divorce satisfying the recognition conditions in the Family Law Act 1986 must be recognised unless a statutory ground for refusal is established. The inquiry under section 51(3) is evaluative, not an unlimited discretion. Reasonable notice may be given by any means; the focus is whether the respondent received a reasonable opportunity to participate.

A court considering an English divorce must investigate a disclosed overseas divorce which may already have dissolved the marriage. Any later English decrees made where no marriage subsisted are nullities. Following the repeal of the statutory provisions linking divorce and child arrangements, a child arrangements application concerning a child habitually resident abroad does not arise “in or in connection with” matrimonial proceedings merely because an English divorce suit exists.

The mother sought contact with the parties’ son under section 8 of the Children Act 1989. The child had lived throughout his life in Dubai and was habitually resident there. The father sought recognition of a Dubai divorce granted in 2012, the setting aside of later English decrees nisi and absolute, and dismissal of the contact application for want of jurisdiction.

The mother contended that she lacked notice and a fair opportunity to participate in the Dubai proceedings and that recognition would be manifestly contrary to public policy. She also relied on the English matrimonial proceedings as a jurisdictional basis for her child arrangements application. The central issues were whether recognition should be refused under section 51(3) of the Family Law Act 1986 and whether section 2(1)(b)(i) conferred jurisdiction over the child application.

1. The father’s applications were granted and the mother’s applications were dismissed. The Dubai divorce was effective where granted, and both parties were habitually resident there when the proceedings commenced. It therefore qualified for recognition under sections 45 and 46 of the Family Law Act 1986.

2. The mother knew of the Dubai proceedings, participated through lawyers, filed a substantial defence and counterclaim, and had a full opportunity to present her case. The proceedings were fair. Neither deficient notice nor denial of a reasonable opportunity to participate was established under section 51(3)(a).

3. Section 51(3) creates an evaluative inquiry rather than a free-standing judicial discretion. Where the statutory standard for refusing recognition is established, refusal follows. For notice, the relevant question is whether reasonable notice was given by any means. The provision does not require the petitioning spouse personally to take the relevant steps.

4. Public-policy refusal under section 51(3)(c) is exceptional. The Dubai court applied a reciprocal, behaviour-based ground of divorce. Although aspects of its language would not ordinarily be used by an English court, recognition did not conflict with English and Welsh public policy to the required degree.

5. The Dubai divorce was accordingly recognised. No marriage remained for the English court to dissolve, so the later decrees nisi and absolute were null and void and were set aside. A petition disclosing a potentially recognisable overseas divorce requires proper investigation before certification for decree nisi.

6. Recognition removed the mother’s asserted jurisdictional basis under section 2 of the 1986 Act. In any event, section 2(1)(b)(i) did not confer jurisdiction. Following repeal of sections 41 and 42 of the Matrimonial Causes Act 1973, child proceedings no longer arise “in or in connection with” matrimonial proceedings merely through the former procedural association between them.

7. The court could not make final contact orders. The father’s promised arrangements were nevertheless treated seriously. The court retained an exceptional inherent power to protect a British minor abroad, potentially including an order requiring the child to be brought to this jurisdiction if those promises were broken.

This was a first-instance determination of consolidated applications. The Dubai Non-Muslim Personal Status Court had granted the divorce and awarded custody to the father in 2012. Separate Dubai proceedings later awarded the mother access; that determination survived appeals to the Dubai appeal court and Court of Cassation. The Family Court at Bury St Edmunds subsequently pronounced English decrees nisi and absolute without determining the effect of the Dubai divorce. The High Court recognised the Dubai divorce and set those English decrees aside.