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IN THE BARNET CIVIL & FAMILY COURTS CENTRE
|St Marys Court,
Regents Park Rd,
|24th August 2015
B e f o r e :
HER HONOUR JUDGE KARP
| RIVKA RAANI
|- and -
|(Queen's Proctor Intervening)
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ELEANOR PLATT QC AND JESSICA BERNSTEIN (acting Pro Bono) appeared on behalf of the Claimant
MONICA JONES appeared on behalf of the Defendant
HTML VERSION OF JUDGMENT
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HER HONOUR JUDGE KARP
- This is a judgment in the matter of Raani v Charazi (the Queen's Proctor Intervening), ED07D02123. This is judgment following the hearing of a plea issued by the Queen's Proctor dated 25 July 2014 to set aside the Decree Nisi dated 31 March 2008 and the Decree Absolute dated 13 May 2008 and to dismiss the petition within divorce proceedings issued in Edmonton County Court in Case No. ED07D02123.
- The Queen's Proctor pleads that:
(1) The Petitioner and the Respondent were married on 26 November 2002 at the Register Office in the London Borough of Haringey.
(2) On or about 26 November 2007 the Respondent presented a petition to this court for dissolution of the marriage relying on five years' separation. The Respondent further stated on oath in his petition that the order of service on the Respondent be dispensed with.
(3) In the petition it was stated by the Respondent that the Petitioner had gone to live in South America with her mother and hence her whereabouts were not known to him. As was well known to the Respondent at the time, the Petitioner was not in South America and the Respondent was in contact with various parties, for instance his brother-in-law, Shlomo Raani, who knew the contact details of the Petitioner. Shlomo Raani confirms that the Respondent could have contacted the Petitioner any time through him, or obtained her address from him, but did not do so. In addition, the Respondent was in regular contact with the Petach Tikva Beit Din, who at all times knew the Petitioner's whereabouts.
(4) The Petitioner was not aware of the proceedings, not having had any documents served on her. Additionally, the Petitioner swore in the affidavit that there were no children of the family.
(5) On 21 February 2008 the Petitioner swore an affidavit in support of his petition stating that everything in the petition was true and expressly stating that the whereabouts of the Petitioner was unknown. On or about that date, he applied to the court for directions for the trial of this cause by entering it in the Special Procedure list.
(6) On 29 February 2008 the court certified pursuant to Rule 2.36(1) of the Family Procedure Rules 1991 that the Petitioner was entitled to a decree of divorce. On 31 March 2008 HHJ Riddle sitting at Edmonton County Court granted the Respondent a decree and declared that there were no children of the family.
(7) On 13 May 2008 it was directed that the decree be made absolute forthwith and it was so made absolute.
(8) The petition was not served on or received by the Petitioner. The statement in the affidavit of the Respondent of 26 November 2007, in which the Respondent states that the Respondent in the divorce proceedings is believed to be living with her mother in South America – the Petitioner has no idea where – is untrue, and was known by the Respondent to be untrue. The statement in the Petitioner's affidavit that there were no children of the family was untrue and known to the Petitioner to be untrue. He had acknowledged the child born to the Petitioner as his own on two separate occasions, namely at the child's circumcision at eight days' old and at the child's redemption ceremony of the first born at one month old. The plea then seeks for the decrees to be discharged, for the petition itself to be dismissed.
- The Queen's Proctor has not been represented at the hearing before me. Both the husband and wife have been represented by counsel and I have considered the documents contained in the trial bundle and the supplemental bundle H of the husband's documents. I have heard evidence over two days from the husband, Moshe Charazi, the wife, Rivka Raani, as well as from the wife's brother, Shlomo Raani. Rivka Raani and Shlomo Raani gave evidence in Hebrew with the benefit of an interpreter. I have also had the benefit of helpful positions statements from both counsel and oral submissions from them. Eleanor Platt QC and Jessica Bernstein acting pro bono on behalf of the wife, and Monica Jones, counsel acting on behalf of the husband.
Background and history
- The husband was born on 28 April 1976 and is now aged 39 and a British citizen. The wife was born on 24 May 1980 and is aged 35 and is an Israeli citizen. Both parties are strictly orthodox Jews of the Satmar Hasidic sect. They were introduced to each other with a view to an arranged marriage in accordance with their customary practice in 2002. They contracted a civil marriage in London on 26 November 2002. The parties agreed that they would not live together or consummate their marriage until the Jewish marriage ceremony. The wife returned to her parents in Israel on 29 November 2002, travelling back to the UK on 6 January 2003 for the Jewish religious ceremony which took place on 8 January. The parties then lived together at the husband's address, 23 Grosvenor House, 139 Upper Clapton Road, London E5 9DS. There is no dispute that the marriage was consummated. The husband says that the wife suffered a miscarriage, which the wife denies. It is agreed that the wife became pregnant early on in the marriage and that the parties attended ante natal appointments at the Homerton Hospital with the husband translating for the wife on 30 May 2003, 2 July 2003 and 2 September 2003.
- The parties travelled together to Israel on 9 April 2003, returning on 29 April 2003, and again on 4 September 2003, returning on 14 September, and then on 15 October 2003 for the wedding of the wife's brother. They stayed with the wife's grandparents in Bnei Brak on that occasion.
- The husband's case is that the wife wanted a divorce, from a few weeks into the marriage, as she wished to live in Israel, whereas the husband says it had been agreed that they would live together in London. The wife's case is that she was deeply unhappy in the marriage from the start, but she told her husband that she wanted a divorce on 30 October 2003 whilst in Israel, and left him the following day on 1 November.
- The child, Yoseph Ariel Raani, was born in Israel on 2 December 2003. A letter translated from the Hebrew from Chaya Kokis, dated 17 December 2003, from the Obstetrics and Gynecology department of Maayanei HaYeshua Hospital reads:
"The aforementioned………woman gave birth to a baby [boy] at Maayanei HaYeshua Hospital on December 2 2003. I worked with her during her stay at the hospital and I got the impression that this was a woman who was experiencing abuse in her marriage. The couple lived in London. The woman did not know English and her husband did not allow her to meet up with Israeli girlfriends and he isolated her socially. In addition, he gave her a minuscule sum of money to buy groceries and, according to her, she suffered numerous times from feelings of hunger. Furthermore, the husband harassed her many times sexually and, according to her, disturbed her sleep on many occasions. I know that during her hospitalisation the husband came to visit her once but he did not form any connection with her. He also showed no signs of interest in the baby. The woman claim is that the purpose of his visit was to put pressure on her to return to London with him. The aforementioned took the woman's identity card from her and refused to give it back to her despite her pleadings and this made it difficult for the new mother to arrange the baby's discharge from hospital."
- There was a circumcision ceremony in Israel on 10 December 2003 and a redemption of the firstborn ceremony on 2 January 2004. The husband and the wife's brother were present at both ceremonies. The husband's evidence in his statement dated 9 October 2014 in response to the Queen's Proctor's plea is that he saw very little of the wife prior to the birth of the child but went to the hospital after the child was born. He writes:
"The Respondent told me that the child was not mine. The Respondent told members of her family as well as rabbis that I was not the child's father."
- He writes at paragraph 12 of his statement:
"I should like to explain that under Jewish custom there is a stigma that attaches to a child being born illegitimate. I should further like to explain that circumcision takes place eight days after the birth of the child and it is the father who must consent to the child's circumcision. The mother cannot do so. Given the Respondent's assertions that I was not the father of the child, I had grave concerns about consenting to the circumcision. Again there were also practical considerations to be taken into account, as a child who is not circumcised at birth has to wait until he is 13 years old before he can be circumcised. The procedure at that age is far more traumatic for a 13-year-old boy than when the procedure is carried out as a baby. The Respondent had already made several unsuccessful attempts to have the child circumcised but was unable to do so because she needed the child's father's consent. I had several discussions with the rabbi and was persuaded that, even though the mother had categorically stated that I was not the father, because I was married to the mother there was still the possibility that I could be the child's father. In the circumstances I consented to the circumcision. The rabbis again persuaded me to return to Israel for the redemption ceremony in January 2004 and in fact they paid my travelling expenses. I should state that this was in no way an acknowledgement of being the father of the child but more due to the practical considerations alluded to above and also to alleviate the stigma which would result from the child being thought to be illegitimate. The Respondent registered the child's birth in Israel and in any event the child's birth certificate did not bear the name given to him by me at the circumcision ceremony, nor was my name mentioned on the child's birth certificate as being the father of the child."
- He goes on to deny that the decree was procured by fraud and submits that the decrees are not nullities. The mother absolutely denies that she ever said to her husband or to anyone else that he is not the father of the child. She is clear, and it is not disputed, that she was a virgin at the time of marriage. Her evidence is that she has never had sexual relations with anyone apart from her husband, even in the 13 years since the marriage. It is her case that the allegation has been fabricated by the husband to explain his failure to mention the child in the divorce petition. It is agreed that the child has never been to the United Kingdom or had any contact with his father since the redemption ceremony on 2 January 2003.
- It is important to note that there is no civil marriage or civil divorce in Israel, only religious marriage and divorce. The wife sought a religious divorce from the Petach Tikvah Beit Din, a rabbinical court in Israel, on 5 January 2004. The husband brought proceedings before the Beit Din in London at the Union of Orthodox Hebrew Congregations. Those proceedings continued for several years and some of the correspondence and determinations from those organisations are contained in the bundle that I have considered. The parties were unable to resolve their issues through the rabbinical courts either in the United Kingdom or Israel and therefore they remain married according to the religious law to which they both adhere.
- On 5 February 2004 the Petach Tikva Beit Din ordered the husband to pay 1,200 New Israeli Shillings per month in Child Support. No payments have actually been made. In a letter stamped as received by the Petach Tikva Beit Din on 2 February 2004, the husband wrote to them disputing the jurisdiction of that Beit Din, saying that he had filed a claim in London before the Union of Orthodox Hebrew Congregations. In that letter he makes reference to a dispute over the name of the child but does not state at any point that the mother has said that he is not the father or that there is any question about whether he is the father of the child.
- In a letter dated 9 December 2005 from the father to the Petach Tikva Beit Din he refers to "my son, Yosef". There are various such references in the husband's correspondence. The husband met with the wife's brother in France on a date which the husband says was in the summer of 2006 but the brother says was in August 2007. The husband says that this was a fleeting chance meeting, whereas the wife's brother says that the husband and his mother came looking for Mr Raani at his religious seminary on their way back from a holiday in France, that they spent three hours together and that the husband tried to persuade him to influence his sister to return to live with him. There was no mention, according to the brother, of any intention to obtain a civil divorce at this meeting.
- The wife's brother's evidence was that he continues to live at the same address in France, where he has lived for the last 11 years and where the husband was able to contact him.
- The husband issued his divorce petition on 26 November 2007, exactly five years from the date of the civil marriage ceremony. The Particulars state that the Petitioner and the Respondent have lived apart for a continuous period of at least five years, immediately preceding the presentation of the petition. In Paragraph 4 of the petition the husband writes that the Respondent is by occupation a teacher and resides at unknown," and, at paragraph 6, "no other child now living has been born to the Respondent during the marriage so far as is known to the Petitioner. The Petitioner believes a child may have been born to the Respondent but has no details of the name of the child". At paragraph 7, "there are, or have been, no other proceedings in any court in England and Wales or elsewhere with reference to the marriage or to any child of the family or between the Petitioner and the Respondent with reference to any property of either of them or both of them." At paragraph 9: "There are no proceedings continuing in any country outside England and Wales which are in respect of the marriage or are capable of affecting its validity or subsistence."
- At paragraph 12 in the particulars on the original petition the husband wrote: "Namely from 26 November 2002 save that the Petitioner and the Respondent have resumed living together for one period not exceeding six months, namely from 26 November 2002 to 26 November 2007. In the circumstance, no account should be taken of the said period." In the amended petition submitted by the husband on 21 February 2008 those particulars were struck through and the husband replaced that with "we have been separated since November 2002. There was periods of cohabitation the total which did not exceed six months, from November 2002 to September / October 2003."
- On 26 November 2007 the husband swore an affidavit in support of an application to dispense with service of the petition. On 31 December 2007 an order was made dispensing with service. On 15 February 2008 the district judge refused to give directions for trial as he was not satisfied with the particulars in the first petition relating to five years' separation. On 21 February the amended petition was filed and an affidavit sworn in support of that amended petition, again stating that the whereabouts of the wife was unknown. On 29 February 2008 the court certified that the husband was entitled to the divorce and gave the Section 41 certificate stating that there were no children of the family.
- A decree nisi was made on 31 March and a decree absolute on 13 May. In November 2009 the husband married a second wife in a religious ceremony in the Yemen. He lives together with his second wife and four children in London. There has been no further civil marriage. In her written statement of evidence dated 6 February 2014 the wife testifies that between December 2004 and June 2006 there was a large amount of correspondence between the Petach Tikva Beit Din (PTBD) and Kedassia Beit Din (KBD). "There was disagreement over which Beit Din should deal with our divorce. The matter was not resolved and proceedings continued in both courts." At paragraph 27 she writes:
"Between 2006 and 2012 I understand that various documents were issued by the PTBD ordering the payment of Child Support which has never been paid and the Respondent was requested to attend a hearing at the PTBD. The PTBD also apparently wrote to various rabbis in London and the KBD asking for their help in securing the get. During this time I had no personal contact with the Respondent and I was not aware of any civil divorce proceedings. In September 2012 I travelled to London and appeared at a hearing at KBD on 3 September 2012. The KBD ordered the Respondent to give me a get. On 27 December 2012 the PTBD ordered the Respondent to give a get. Both the Petach Tikva Beit Din and the KBD attempted to persuade the Respondent to give a get. The Respondent has still not given me it yet. In the light of this, I was surprised to learn that the Respondent has now remarried. Throughout those Beit Din proceedings, at no time was I informed that the Respondent had filed for or obtained a civil divorce in the Edmonton County Court or anywhere else."
- She writes:
"I now understand that on 26 November 2007, exactly five years to the day from my civil marriage, the Respondent filed a petition for divorce in the Edmonton County Court alleging that we had been separated for five years. We had not been separate for five years and we had lived together in excess of six months during our time together. I was not contacted in relation to those proceedings. I now understand that service on me was dispensed with since the Respondent claimed that I could not be contacted because I was at an unknown address in South America. I was totally unaware of these divorce proceedings. I did not see the divorce documents until 12 September 2013 after the court received a D11 application on 29 August 2013. I received the court documents."
- She goes on to delineate them and says:
"I received the divorce documents because Rabbi Davidovich in London, a rabbi who has represented me in the KBD and has tried to help me, realised that as the Respondent had remarried he may have got a civil divorce. I understand that Rabbi Davidovich wanted to try to obtain the civil divorce documents. He arranged to apply for the documents on my behalf and they were sent to me."
- She goes on to say at paragraph 36:
"I was shocked to discover that the Respondent had made a number of untrue statements in the petition and sworn an affidavit dated 26 November 2007 and amended petition and affidavit dated 21 February 2008. (a) He stated he did not know my whereabouts; (b) he stated that I was living in South America; (c) he stated that the petition was on five years' separation and stated that we had lived together less than six months during those five years; (d) he stated that there were no children of the family; (e) he stated that a child may have been born but he had no details of the child's name; (f) he stated that there were no proceedings relating to the marriage in any court in England and Wales or elsewhere."
- She goes on to explain the various methods through members of the family, people known to both parties, and through the Beit Dins, that she could have been contacted. She explains that there was no reason that she would have moved to South America, a country where she has neither family nor any connections, and confirms that from early 2004 she was involved with Beit Dins and that her husband was aware that the Petach Tikva Beit Din were in contact with her and knew her whereabouts.
- So far as the five-year separation is concerned, she writes that the parties did not start living together until after their religious wedding on 8 January 2003 but then lived together continuously until she left him on 1 November 2003, a period of almost nine months. She comments in relation to the child:
"The Respondent stated that there are no children of the family. This is another lie by the Respondent. As I have indicated in several paragraphs above this statement, the Respondent had full knowledge about our son. He attended the hospital around the time of the birth, attended the circumcision and the Pidyon Ha-ben in Israel. Further, the Respondent named our son at the circumcision."
- She refers to the other ongoing proceedings. She concludes:
"Over the last nine years a considerable amount of effort has been made to obtain a get so that I am properly divorced from the Respondent and can remarry, should I so wish, within my religion. I have cooperated with the Petach Tikva Beit Din, the Kadasia Beit Din, as well as several rabbis and friends who have supported me. I was extremely angry to discover that the Respondent could obtain a civil divorce with considerable ease without my knowledge and based on untrue facts, in the light of the Respondent's lies, which I believe amount to perjury, since part are contained in an affidavit."
- She asks the court to rescind the decree so that she can then control the issue of a divorce petition and use the Divorce (Religious Marriages) Act 2002 to try to obtain a get, a Jewish divorce.
- The standard of proof in these proceedings is to the civil standard, the balance of probabilities. In view of the Queen's Proctor's plea before during the proceedings I gave the parties a clear warning before they gave evidence pursuant to section 1(1) of the Perjury Act 1911:
"If any person lawfully sworn as a witness or as an interpreter in a judicial proceeding wilfully makes a statement material in that proceeding, which he knows to be false or does not believe to be true, he shall be guilty of perjury, and shall, on conviction thereof on indictment, be liable to penal servitude for a term not exceeding seven years, or to imprisonment for a term not exceeding two years, or to a fine or to both such penal servitude or imprisonment and fine."
- I heard the wife give her evidence through the interpreter. She was extremely distressed at first, but after a break was able to give clear and cogent evidence. She was adamant that she had never told the husband that the baby was not his; that she had never had sexual relations with anyone else and that her husband had been able to contact her through various members of her family, including her brother in France, who he had actually met with in 2007; her grandparents, whose home he had visited; or through the Petach Tikva Beit Din, or a number of other rabbis and mutual friends known within their close-knit community, all of whom were well aware where she and her parents lived, and to whom he had copied a letter that he sent to the wife's mother dated 9 December 2005, which appears at page D30 of the bundle. She was consistent and persuasive in her evidence that she had not separated from her husband until 1 November 2003. I found her to be a credible and reliable witness. Her evidence was consistent with the various documents that had been produced as part of this bundle, and, where she made minor errors in her first sworn statement, she was careful to correct them before giving evidence to this court.
- I heard the evidence of her brother, Shlomo Raani. He too gave careful evidence about the husband coming to see him in France in August of 2007. I found him to be measured and reliable with a memory of significant details, such as seeing them in their car, sitting in the car with them, studying a particular book, which gave great credence to his account, and I accept his evidence in its entirety.
- I heard the husband give his evidence. I found his account to be rambling and confused. He attempted to justify each of the errors in the divorce petition as mistakes or misunderstandings, which I found unconvincing. His account was inconsistent with very many of the supporting documents, including his own letters to the Petach Tikva Beit Din. Where his account conflicts with the wife, I unhesitatingly prefer the wife's evidence, corroborated by her brother and the supporting documents.
- So far as the facts are concerned, the Respondent stated in the affidavit, sworn at the court on 26 November 2007 in support of his application to dispense with service of the proceedings, in answer to the question: On what date and at what address did you and the Respondent last live together? He replied "in or about October 2003 was the last time we lived together at 23 Grosvenor House, Upper Clapton Rd, London E5 9DS." At the time he wrote that statement it would have been clear to him that the separation took place in Israel.
- At question 2 he answers the question: Where did the Respondent live after the parting? "At her mother, 12 Rabbenu Tam, Elad, Palestine. Heard from neighbours that they moved to South America. Unknown address." That conflicts with the oral evidence he gave to the court that he had sent a Rabbi Sleyman to make inquiries from the address, but Rabbi Sleyman had died in 2008 and that it was from Rabbi Sleyman that he had heard that the mother had moved to South America. His evidence in respect of that conversation was vague and unpersuasive. He answered the question: When was the Respondent last seen or heard of with the words "in or about October 2003. The Petitioner's mother-in-law took the Respondent by force and did not let the Petitioner see or speak to her." When he made that comment he was well aware of the fact that the Petitioner's mother-in-law has never been to the United Kingdom since the wedding and that the separation took place in Israel. He did not honestly answer the question, "when was the Respondent last seen or heard of?", because he failed to mention the correspondence and proceedings in the Petach Tikva Beit Din and the Kedassia Beit Din, both of which post-dated the date of separation.
- He answered the question: What relatives or friends of the Respondent are known to the you?, with the answer "the Petitioner's mother-in-law. It is understood that she has moved with her family to South America from her last known address, 12 Rabbenu Tam, Elad, Palestine. The Petitioner's father-in-law is believed to be living in America at an unknown address." He makes no reference to any of the people to whom he copied his own correspondence in 2005 nor to other relatives of the wife, such as her brother, who gave evidence before me.
- Finally, at question 9, when asked: What other inquiries have you made or information do you have concerning the whereabouts of the Respondent, he replied "the Respondent is believed to be living with her mother, somewhere in South America. The Petitioner has no idea where." He gave evidence that he had tried to find the wife's address by writing to the Petach Tikva Beit Din for a copy of their file. I have considered his letter to the Petach Tikva Beit Din. He asked for a copy of the file, but makes no mention of wanting the wife's address or of wishing to contact her to serve divorce proceedings on her. I find that no attempt was made to contact the wife through the Beit Din.
- I have carefully considered Ms Jones's submissions on the husband's behalf that there was no intention to mislead the court or to perjure himself in obtaining the order to dispense with service of the petition, and that I should take into account that the husband is a litigant in person with only basic advice from the Citizens Advice Bureau; that his understanding was that, as his marriage was not normal from the start and they had been separated before they had actually consummated the marriage, that was the appropriate date to include in the divorce petition as the date of separation; and that the husband believed that there was some doubt about whether the son is in fact his, and that explains the wording he used on the divorce petition; that, as the Beit Din proceedings are in a religious court, they are not proceedings that he thought he was required to mention in the divorce proceedings.
- I have firmly in mind the seriousness of the implications of making the findings of fraud, particularly in circumstances where the husband has remarried in another religious ceremony, although without a civil ceremony. Nevertheless, I found his evidence totally unbelievable in the context of the background and history to this matter from the evidence and from the documents, which I have set out in some detail in this judgment.
- I find as a fact that the husband did not make any attempt to serve the proceedings on his wife or to find out where his wife was, and I find that he knew that she was in Israel and not in South America and that his reference to South America was a deliberate attempt to conceal information that he knew and to mislead the court. I find that as recently as August 2007, before the Petitioner was served in November 2007, he had met with the wife's brother and that he knew that he could contact the wife through her brother, through the Petach Tikva Beit Din, through her grandparents or through a number of rabbis known to him within the close-knit community, but that he deliberately failed to do so. I find that he stated in the divorce petition that the parties had been separated for five years, though he knew that he had not separated until 1 November 2003 and that the grounds for divorce were not made out. I find that he deliberately omitted mentioning the ongoing proceedings in the Petach Tikva Beit Din when stating that there were no proceedings relating to the marriage in any court in England or Wales or elsewhere. I find that he knew that Yosef Ariel was his son and that he fabricated the evidence that his wife had told him and others that he was not the father to explain why he had omitted his son's details in the divorce petition; and I find that his use of the words "the Petitioner believes that a child may have been born to the Respondent but has no details of the name of the child" was a deliberate attempt to mislead the court.
- Ms Jones has drawn my attention to the judgment of the President in Rapisarda v Colladon AC11D00099, the most recent case in relation to divorce proceedings and nullity. At paragraph 26 the President says:
"Sir Stephen quoted the well-known words of Denning LJ in Lazarus Estates Ltd v Beasley  1 QB 702, 712:
'No court in this land will allow a person to keep an advantage which he has obtained by fraud. No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything. The court is careful not to find fraud unless it is distinctly pleaded and proved; but once it is proved, it vitiates judgments, contracts and all transactions whatsoever…'
He expressed his conclusion as follows:
'A decree absolute is generally considered to be good against all the world. It is an order 'in rem'. However, if it has been obtained by fraud, there is a fundamental defect. In this case, I have no doubt that Lord Moynihan's divorce petition was deliberately framed in a way which was calculated to deceive the court. All the subsequent representations and submissions which were made to the court were vitiated by fraud. He wished to obtain a divorce. He wished to do so even if his wife objected to it, as I believe she did or would have objected, if only on financial grounds. He quite deliberately set out to deceive the court. His affidavit verifying the petition was false, and in swearing it he committed perjury. He perverted the course of justice and succeeded in obtaining a decree. It is a gross case. The inevitable consequences to all are serious. I have no doubt that I should set aside and declare null and void the decree absolute and the decree nisi and dismiss the petition.'"
- The President writes at paragraph 81:
"On the authority of Callaghan v Hanson-Fox (Andrew)  Fam 1, sub nom Callaghan v Hanson-Fox and Another  2 FLR 519, and Moynihan v Moynihan (No 2)  1 FLR 59, these findings alone suffice to establish fraud rendering both the decree nisi and the decree absolute void.
82. It follows that the Queen's Proctor has established his case. In each of these cases where there has been either a decree nisi or a decree absolute, the decree(s) must be set aside as being void for fraud. In each case the underlying petition must be dismissed. This is not a matter of judicial discretion; it is the consequence which follows inexorably as a matter of law from the facts as I have found them. And for reasons I have already explained in paragraph 16 above, it makes no difference if one or other or both of the parties have, as in Rapisarda v Colladon AL11D00099, re-married or even had a child."
- I find that Mr Charazi's amended divorce petition affidavit in support of his application to dispense with service and affidavit verifying the contents of the petition were deliberately framed in a way calculated to deceive the court, and in swearing the affidavits he committed perjury. He perverted the course of justice and succeeded in obtaining a decree absolute by fraud. As in the cases of Moynihan and Rapisarda, this is a gross case. I have no doubt that I should set aside and declare null and void the decree nisi and decree absolute and dismiss the petition.
- The order I make is that the decree nisi, dated 31 March 2008, and decree absolute, dated 13 May 2008, are set aside, and the divorce petition and amended divorce petition are dismissed. The Queen's Proctor and the wife have leave to disclose the documents within these proceedings and a transcript for this judgment to the Metropolitan Police and to the Crown Prosecution Service. I direct a transcript of this judgment is prepared at public expense, the wife's representatives putting in a request for the transcript; and, finally, that the husband pay the costs incidental to the intervention of the Queen's Proctor to be detailed assessed if not agreed.
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