Mensah v Mensah

Under Council Regulation (EC) No 2201/2003, recognition of a divorce judgment from another Member State is mandatory unless one of the limited grounds for non-recognition is established. The public policy exception has a narrow scope, and the receiving court cannot review the originating court’s jurisdiction or the substance of its decision.

For the default-appearance exception, the respondent must show both inadequate service and insufficient opportunity to arrange a defence. Knowledge of the proceedings, including through documents lodged at court, and a deliberate decision not to participate will generally defeat the exception. Later domestic divorce decrees do not create an irreconcilable judgment where the marriage had already been dissolved abroad.

The wife appealed against an order of District Judge Robinson registering, under Council Regulation (EC) No 2201/2003, a French divorce judgment dated 18 February 2015. The parties had begun divorce proceedings in France, attended a non-conciliation hearing, and the wife later challenged the French court’s jurisdiction but did not participate further.

After the French divorce, the wife obtained English decrees nisi and absolute. The husband argued that the French judgment should be recognised and that the English decrees were nullities because the marriage had already been dissolved. The central issues were whether any Article 22 ground for non-recognition was established and what effect the prior French divorce had on the English decrees.

1. Appeal dismissed. The French divorce judgment was properly registered under Council Regulation (EC) No 2201/2003.
2. The wife could not rely on the public policy exception in Article 22(a). She accepted that she wished to be divorced, and the exception is narrowly confined.
3. The Article 22(b) exception was not established. Although the wife’s procedural status could be debated, she knew of the husband’s summons and the pending French proceedings. Her letter of 9 September 2014 set out her jurisdictional objections in detail. She therefore had sufficient time and opportunity to arrange her defence. Her subsequent decision to take no further part did not amount to the absence of an opportunity to defend. The concept of appearance may include lodging documents at court, as explained in Re D (A Child) (Recognition of Foreign Order) (Reunite Child Abduction Centre Intervening) [2016] 1 WLR 2469.
4. Articles 22(c) and (d) did not prevent recognition. By the time the English decrees were made, the marriage had already been dissolved in France. Recognition of the French judgment therefore did not create an irreconcilable judgment. The registration scheme was designed to prevent conflicting judgments concerning marital status.
5. The English decree nisi dated 14 January 2016 and decree absolute dated 7 April 2016 should be set aside as null and void. They would not have been made had the English court been fully informed of the French proceedings and orders.
6. Obiter, the court stated that information in the English divorce file should have prompted investigation under FPR r 7.20(2), including application of the duty in section 1(3) of the Matrimonial Causes Act 1973. Where foreign proceedings may affect jurisdiction or the subsistence of the marriage, the court should consider directions and any stay required by FPR r 7.27 and Articles 16 to 19 of the Regulation.

• High Court (Family Division): On appeal from District Judge Robinson’s order dated 10 March 2017, the appeal was dismissed. The French divorce judgment remained registered, and the English decree nisi and decree absolute were set aside.