In the course of writing this blog over many years, I have frequently warned against the pitfalls of marrying and living abroad.
As many of our correspondents have learned to their cost, the law of the country they are living in is will not the same as the law in England.
For example, spousal maintenance may not be payable in a foreign country, and a dependent wife may not get the same outcome as she would in this country had she divorced here.
Similarly, something taken for granted in a foreign country may not be applicable here and fall foul of English law – for example treating divorce as an administrative rather than judicial procedure.
So it is vital, if you plan to leave this country or have just arrived, to take legal both here and abroad to ensure the best possible route is taken to reach the best possible outcome.
In a newly announced judgement, Solovyev v Solovyeva, the couple married in Russia in 2002 before moving to London.
They have now learned that the divorce they obtained through the Russian Consulate is not recognised in England and Wales, despite the wife having remarried in the USA. She is now living with her second husband in England under a spousal visa.
The husband got engaged to another woman who had to leave this country when the authorities declared that she could not be his fiancée because he was still married.
A declaration of validity of the divorce decree was sought and despite the best efforts of both counsel arguing the matter out in court, Sir James Munby, President of the Family Division, refused the declaration.
“The question I have to determine is whether that divorce is recognised under the law of England and Wales. In my judgment, it is not. So far as concerns both England and Wales (and indeed … the entire United Kingdom) they remain married.”
The divorce had actually taken place at the Russian Consulate in London and was carried out in accordance with the proper Russian procedure, but although it is recognised as valid in Russia, and was recognised in the USA, it is not recognised in England because in law the Russian consulate is regarded as falling under English jurisdiction as it is on English soil.
According to Part II of the Family Law Act 1986. Section 44(1):
” … no divorce … obtained in any part of the British Islands shall be regarded as effective in any part of the United Kingdom unless granted by a court of civil jurisdiction.”
Munby ruled that the divorce proceedings did not comply with the Act, which states:
“[T]he validity of a divorce … obtained in a country outside the British Islands (in this Part referred to as an overseas divorce … ) shall be recognised in the United Kingdom if, and only if, it is entitled to recognition … by virtue of sections 46 to 49 of this Act .”
Section 46 states that divorce proceedings from overseas will only be recognised as valid if:
“(a) the divorce … is effective under the law of the country in which it was obtained;
(b) at the relevant date –
(i) each party to the marriage was domiciled in that country; or
(ii) either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce … is recognised as valid; and
(c) neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date.”
Sir James said while there was no doubt the divorce was obtained in accordance with Russian law, the critical question was where it was obtained.
Using Radwan v Radwan and Dukali v Lamrani (Her Majesty’s Attorney General intervening) as precedents, Munby ruled that the Consulate of a foreign state is treated as English, rather than foreign territory, in disputes such as this.
“In my judgment there is only one possible answer to this question: the divorce was obtained at the Consulate in London … and was thus obtained in this country.”
The only way to get divorced in England is via our own civil procedure. Had the parties done that, and not tried to circumvent English law, they would have had no problem.
Now they have a situation where their divorce is considered legal and binding everywhere in the world (probably) except the by the law of the country in which they happen to both live.
Comity is an established legal principle that one nation will recognize the validity of another nation’s executive, legislative or judicial acts.
So, whilst this is a strong argument and to most people makes sense, if an English court is obliged to recognise a foreign divorce which did not go through our judicial system, will that potentially open the floodgates for people to seek a foreign divorce on English territory which suits their singular interests, potentially circumventing the English system entirely?