Enforcement of Foreign Consistorial Judgments (L14) Flashcards
How does a petitioner test the validity of a foreign judgment?
A petitioner should raise an action for declarator of recognition, or non-recognition, of a relevant foreign decree.
DMPA 1973, s7(3A).
What effect did the Jurisdiction and Judgments (Family, Civil Partnership and Marriage (Same Sex Couples) (EU Exit) (Scotland) (Amendment etc.) Regulations 2019 (SSI 2019/104) (‘2019 Exit Regulations’) have on consistorial judgment enforcement?
In light of UK withdrawal from the EU without a negotiated settlement, the Exit Regs revoked the European family law regime (‘Brussels II bis’) for Scotland and reinstated the ‘old’ recognition rules so that they apply to ALL overseas divorces, annulments and legal separations).
The 2019 Exit Regulations amended the Family Law Act 1986.
Which piece of legislation governs consistorial judgment enforcement?
Family Law Act 1986, Part II.
What is the distinction made between different types of foreign divorces under FLA86?
S46(1): divorces obtained ‘by means of proceedings’; and
S46(2): divorces obtained ‘otherwise than by means of proceedings’.
What are s46(1) ‘proceedings’ divorces?
Proceedings’ divorce etc recognised if:
It was effective where it was obtained; and
On the date of the commencement of the proceedings:
Either party was a habitual resident/domiciliary/national of that country.
What are s46(2) ‘non-proceedings’ divorces?
‘Non-proceedings’ divorce etc recognised if:
It was effective where it was obtained; and
On the date on which it was obtained:
Both parties was domiciled there/ one is so domiciled and the other’s domicile recognises the divorce; and
Some connection by both parties to the court of origin.
Neither party was habitual resident in UK for one year prior to date of divorce.
How does the case of Botwe v Brifa [2021] demonstrate a s46(2) divorce NOT being enforced?
Recognition of the divorce failed because both parties had habitual residence in the UK.
English court accepted that the Ghanaian divorce was effective in Ghana, but wouldn’t recognise it because they had been habitually resident in the UK.
How does the case of Duhur-Johnson v Duhur-Johnson [2005] show a foreign divorce NOT being enforced?
Nigerian divorce.
Evidence was hard to give to the court that the Nigerian divorce was effective in Nigeria.
What does FLA86 s51(1) provide as a ground to refuse to recognise a foreign divorce?
Res judicata: divorce irreconcilable with prior judgment.
What does FLA86 s51(2) provide as a ground to refuse to recognise a foreign divorce?
No subsisting marriage.
What does FLA86 s51(3)(a) provide as a ground to refuse to recognise a foreign divorce?
No notice/opportunity to take part (s46(1) only).
If one spouse wasn’t told about the proceedings.
What does FLA86 s51(3)(b) provide as a ground to refuse to recognise a foreign divorce?
No evidence divorce is effective where obtained (s46(2) only).
What does FLA86 s51(3)(c) provide as a ground to refuse to recognise a foreign divorce?
Recognition manifestly contrary to public policy (s46(1) and (2)).
How does the case of Kendall v Kendall [1977] demonstrate refusal to recognise a foreign judgment as it would be contrary to public policy?
A couple who lived in Bolivia. Husband on a short-term contract there.
Couple decided the wife would take the children back to England, he said he would follow in a few months.
Before the wife left, husband told her there were documents for her to sign to take the kids away. They were written in Spanish.
Husband doesn’t return for a year, informed her they were divorced and he was remarried.
The document she signed was power of attorney for him to bring divorce.
Bolivian court decreed the divorce. English court refused to recognise it.
How does s54 define a s46(1) divorce?
‘Proceedings’ means ‘judicial or other proceedings’.
