Whilst I make no comment upon the motives of the wife in the case I am about to discuss, the issue of ‘forum-shopping’ is much in the news these days. Wives in particular are often anxious that their divorce proceedings are heard in this country, as it is generally considered that our courts are more generous towards wives when it comes to financial settlements than the courts of many other countries. The essence of forum shopping is usually getting the divorce proceedings issued first in the country where you want them to take place. However, as we will see, that is not always enough.
In the recent case Mensah v Mensah the wife sought to have her divorce dealt with here, rather than in France. However, her problem was that the French divorce took place first. She sought to get around this by arguing that she had not been given proper notice of the French divorce, and that it should not therefore be recognised by the English courts.
The facts of the case were that both parties were French nationals. They were married in the Ivory Coast in 1988 and have two children, both now adults. When the marriage broke down in around 2011 the husband was working in Ghana and the wife was living in an address in London that had been the family home prior to the husband taking up his job in Ghana.
The wife issued divorce proceedings in England in 2011, but the husband was not served. She then issued divorce proceedings in France in 2012. A hearing took place in France at which both parties were present. However, the wife did not thereafter progress the French proceedings.
Instead, the husband issued a summons in the French proceedings, which led to the French court granting the divorce in February 2015. The wife claimed not to have been given notice of the summons.
Back in England, the wife proceeded with her divorce. Decree nisi was pronounced in January 2016, and was made absolute in April 2016.
In January 2017 the husband applied to have the French divorce order registered in this country, thereby recognising the French divorce. The order was registered in March 2017, and it was against the registration order that the wife appealed. As mentioned, she claimed that she had not been given notice of the husband’s summons. Further, as the English proceedings had been issued first she submitted that the English court had jurisdiction to deal with the divorce.
The appeal was heard by Mrs Justice Theis in the High Court. It was something of a tangled web for her to unravel but, as she said, the position became clearer once the threads of the two sets of proceedings were drawn together. Her crucial finding was that the wife had in fact been given notice of the husband’s summons. It had been served by a bailiff at her Paris address (which she had given to the French court) and her son had informed her of this. The wife chose not to take any further part in the proceedings. There was therefore no reason not to recognise the French divorce.
As to the English proceedings, the divorce decrees were null and void, as by the time the decree nisi was pronounced the marriage had already been dissolved in France. In addition, said Mrs Justice Theis, there were sound policy reasons why the wife should not be allowed to rely on the later English divorce decrees, when there was evidence to suggest that she had not given the English court all the relevant information regarding the French proceedings prior to obtaining the divorce decree here.
Accordingly the wife’s appeal was dismissed, and the decree nisi and decree absolute made by the English court were set aside.
As I said at the outset, I’m not sure whether the wife here was ‘forum shopping’. In fact, it is a rather unusual case, as normally one would expect the ‘foreign’ proceedings to have been issued by the husband (indeed that was what I was expecting until I got to the eighth paragraph of the judgment!). The wife was clearly not forum shopping when she issued proceedings in France. Whatever, the case is a reminder that the English courts will usually recognise a properly obtained foreign divorce – if one does wish to ‘forum shop’, then it is not always enough to ‘get in first’ in the country where you want the divorce to take place.
You can read the report of the case here.
Image by Steve Johnson via Flickr under a Creative Commons licence