Lachaux v Lachaux

Recognition of an overseas divorce under the Family Law Act 1986 has a wide threshold, but recognition may be refused on the statutory grounds, including a high-threshold public-policy exception.

Whether a spouse had reasonable notice and an effective opportunity to participate is fact-sensitive. A foreign court’s public-policy conclusion does not create an issue estoppel because the English court must apply its own public policy. Section 2(1)(b)(i) retains a broad residual jurisdiction connected with English matrimonial proceedings, subject to the applicable international instruments and the court’s power to decline jurisdiction.

The mother, a British national, and the father, a French national, married in England and lived in Dubai, where their child was born and continued to live. The father obtained a Dubai divorce and custody order in 2012. The French courts later refused recognition of the divorce on French public-policy grounds, while an appeal remained pending.

The mother obtained English divorce decrees and applied for a child arrangements order under section 8 of the Children Act 1989. Mostyn J recognised the Dubai divorce, set aside the English decrees and dismissed the child arrangements application: Lachaux v Lachaux [2017] EWHC 385 (Fam), reported at [2018] 1 FLR 380. The appeal concerned recognition under sections 51(3)(a)(ii) and 51(3)(c) of the Family Law Act 1986, issue estoppel, the evaluation of Dubai law, and the scope of section 2(1)(b)(i).

Moylan LJ, with Baker LJ agreeing, dismissed the appeal. The Dubai divorce was entitled to recognition and the English decrees remained set aside.

1. Issue estoppel. The Paris Court of Appeal’s findings did not determine the same issue as the English court. Whether recognition is contrary to public policy is context-specific. Each state applies its own concept of public policy, so the English court had to decide the matter for itself. Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2) [2014] QB 458 applied. Owens Bank Ltd v Bracco [1992] 2 AC 443 did not assist because it concerned fraud rather than public policy.
2. Foreign law and factual findings. Mostyn J was not in a sound position, without expert evidence and having regard to Article 2(1) of the Federal Personal Law No. 28/2005, to determine the meaning and effect of Dubai law or whether it was non-discriminatory. That error did not undermine his independent factual findings about what occurred in the proceedings. Appellate interference with those findings required an identifiable error or a demonstrable misunderstanding or failure to consider relevant evidence.
3. Opportunity to participate. Under section 51(3)(a)(ii), the question is whether the spouse had an effective opportunity to participate, assessed by reference to the nature of the proceedings and all the circumstances. The judge was entitled to find that the mother knew of the proceedings, was represented and had participated, notwithstanding her later withdrawal.
4. Public policy. The exception in section 51(3)(c) has a high threshold. Relevant factors include the parties’ connections with the countries concerned, the reasons for obtaining the divorce abroad and its actual effect on rights. Dubai was the natural and substantial forum; both parties sought a divorce there; and the discriminatory language in the Dubai judgment did not make recognition manifestly contrary to English public policy. The alleged defects in the custody process did not alter that conclusion. Recognition of the divorce did not necessarily amount to recognition of the custody order.
5. Child jurisdiction. Mostyn J was wrong to regard section 2(1)(b)(i) as redundant. It replaced the former jurisdiction under section 42 of the Matrimonial Causes Act 1973. The court should take a broad view of whether the child question arises in or in connection with matrimonial proceedings, subject to BIIa, the 1996 Convention and section 2A(4). That error had no material effect because the Dubai divorce was recognised. There was no justification for interfering with the costs order.

• Court of Appeal (Civil Division): dismissed the appeal and upheld recognition of the Dubai divorce, while correcting the interpretation of section 2(1)(b)(i) of the Family Law Act 1986: [2019] EWCA Civ 738.
• High Court of Justice, Family Division: Mostyn J recognised the Dubai divorce, set aside the English decrees and dismissed the application under section 8 of the Children Act 1989: [2017] EWHC 385 (Fam); [2018] 1 FLR 380.