Is a divorce abroad valid in England? - Lachaux v Lachaux
The Court of Appeal have recently reviewed this area of divorce law in the case of Lachaux v Lachaux. This was an appeal 2017. Both the appeal and the original judgment serve as a reminder of the process for recognition of divorces attained abroad by the England and Wales judicial system.
Under the Family Law Act 1986, as long as the laws and procedures of the foreign country have been correctly followed and there are no public policy issues, the English courts will generally recognise a divorce obtained abroad – the purpose is to provide certainty and clarity for the parties concerned.
A similar process in reverse applies where a party wishes to challenge that a marriage abroad is legitimate.
Summary of the case
Mr & Mrs Lauchaux were married in London in 2011, and their case was fought mainly over the validity of the divorce achieved by the Non-Muslim Status Court of Dubai in August of 2012.
Mr.Lachaux sought a declaration from the English court recognising this divorce, while Mrs.Lachaux challenged. Mrs.Lachaux also wanted to divorce but challenged the divorce in Dubai because it would have had financial and practical ramifications for her in terms of childcare arrangements.
Custody of the child was awarded to Mr.Lachaux during the proceedings in Dubai and if not recognised in English law, this opens the way for review of those arrangements.
Judgment at Trial - 2017
During his final judgment of this case Mr.Justice Mostyn, rejected Mrs.Lachaux’s challenge and fully recognised the Dubai divorce, making several important points regarding this issue:
· “In my opinion the courts of this jurisdiction should be very slow to make orders that directly conflict with pre-existing orders in any friendly foreign state”
· “The temptation to make conflicting orders arises from a contemplation of the gulf between the legal systems based on a Judaeo-Christian model and legal systems applying the Sharia Law”
Mr.Justice Mostyn approved Mr.Lachaux’s applications based on his [Mostyn’s] own research of the Dubai legal system, which on first reading sounds dubious, however his expertise and evidence provided was approved by the Court of Appeal.
Mr.Justice Mostyn accepted the Dubai decision on the ground that the Dubai legal system had provided a just and fair divorce.
Mrs.Lachaux appeals - 2019
Earlier this year, Mrs.Lachaux’s appeal was heard. The appeal was made on the grounds that United Arab Emirates public policy, and subsequently its judicial policy, ran contrary to that enjoyed in England and also that the judge’s evaluation of the evidence was wrong.
The Court of Appeal rejected this appeal and concluded that UAE public policy was not as dissimilar to English public policy as to lead to a refusal of recognition of the Dubai divorce.
The court also held that Mr.Justice Mostyn was within his right to provide research to the court given that there was no expert evidence available at the trial. The importance of the Family Law Act 1986 was also reemphasised by Mr.Justice Moylan who crucially stated:
· “One of the public policy objectives of the 1986 Act was to avoid limping marriages, primarily through the recognition of overseas divorces rather than their non-recognition
Not all laws are the same….
It is interesting to note that Mr.Lachaux’s request for recognition of his Dubai divorce in his home country of France was actually rejected. The Paris Court of Appeal found that the Dubai divorce stood in contrast to French public policy and was subsequently refused recognition. Mr.Lachaux promptly made an appeal against this decision, but because the Court of Appeal could wait no longer for a final decision from France it was decided to proceed anyway and the judgment was entered in England Tempting to say England 1, France 0.
What are the wider consequences of this case?
The outcome of this case marks a significant reduction of legal barriers between Britain and the rest of the world and clearly demonstrates a keenness of British judges to accept overseas divorce, even if countries such as France do not. This pragmatic approach to foreign divorces adopted by English courts will certainly make it much easier for English nationals to get their foreign divorce recognised here, and should also serve to protect the best interests of children involved.
If you are affected by any of the issues in this case, please contact the Giles Wilson Family Department for a discussion.