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You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> J v J (Non-Recognition of Overseas Divorce) [2021] EWFC 43 (14 May 2021)
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Cite as: [2021] EWFC 43

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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

Neutral Citation Number: [2021] EWFC 43
Case No: ZC19D00132

IN THE FAMILY COURT
Sitting at the Royal Courts of Justice, Strand

Royal Courts of Justice
Strand, London, WC2A 2LL
14 May 2021

B e f o r e :

Mr Justice Peel
____________________

Between:
J
Applicant
- and -

J
Respondent

____________________

The Applicant in person
The Respondent in person

Hearing dates: 12-13 May 2021

____________________

HTML VERSION OF JUDGMENT APPROVED
____________________

Crown Copyright ©

    Mr Justice Peel:

    Introduction

  1. This matter came before me on 8 February 2021. It was listed to consider a wide range of applications made by the Applicant Wife ("W"), namely:
  2. i) For her English divorce suit to be progressed.

    ii) By application dated 28 December 2020 "That the English Family Court shall continue to have jurisdiction… and shall not recognise any decision made by the Chinese courts".

    iii) By application dated 12 March 2020 for:

    a) Maintenance Pending Suit under s22 of the Matrimonial Causes Act 1973 ("the Act"); and
    b) A Legal Services Order ("LSO") under s22ZA of the Act.

    iv) By application dated 5 April 2020 a freezing order against:

    a) The Respondent's shareholding in overseas company 1; and
    b) The Respondent's personal overseas bank account.

    v) By application dated 10 June 2020 for joinder of:

    a) Overseas company 2;
    b) An associated third party individual.

    vi) By application dated 24 September 2020, a freezing order against:

    a) Bank accounts of overseas company 1;
    b) Stock (goods) belonging to overseas company 1;
    c) All bank accounts of overseas company 3;
    d) Stock (goods) belonging to overseas company 4;
    e) Stock (goods) belonging to overseas company 5.

    vii) By application dated 5 April 2020, third party disclosure orders against:

    a) 26 companies controlled by the Respondent;
    b) Customers of the said companies;
    c) "People and legal entities who helped The Respondent to dispose of our family assets".
  3. Since that hearing, which was adjourned for reasons which I will explain, she has issued two further applications:
  4. i) By application dated 11 February 2021 she seeks joinder of 4 further overseas companies:

    ii) By application dated 11 April 2021 she seeks anonymisation of all judgments in the current proceedings.

  5. The February hearing was conducted remotely by MS Teams, with W in London and the Husband ("H") in China. Both were in person. I heard submissions from them and delivered a written judgment.
  6. It became clear during the hearing that W's applications largely fell away at that stage because of a Chinese divorce obtained by H which preceded any decree here. In her written evidence, W had referred to ongoing proceedings in China. I asked my clerk the working day before the hearing to enquire of both parties whether a decree of divorce had been pronounced in China. H sent me an affidavit from his Chinese lawyer. This document had previously been sent to the Central Family Court and was therefore delayed in reaching me until the first morning of the hearing. It became clear that a decree of divorce had been pronounced in China on 14 December 2020. I asked W whether she accepted a final decree of divorce had been obtained in China. She did not demur. Given that W had not obtained a decree of divorce in this jurisdiction, despite having issued a petition on 30 May 2019 (nearly 2 years previously), axiomatically her divorce suit fell away. Consequently, her application for financial remedy proceedings similarly fell away.
  7. I gave a judgment so as to attempt to pull the strands together, this being a case which had proceeded without either judicial continuity or any serious attempt at case management; the reason being that the sheer volume of issues and documentation had never had sufficient time allocated to it. For the general background to the applications before me today, I have drawn on my previous judgment.
  8. I recorded on the face of my order dated 10 February 2021 that "prima facie the Chinese decree of divorce has been entered into prior to conclusion of [W's] divorce proceedings in this jurisdiction". I asked W whether she intended to apply for a refusal of recognition of the Chinese divorce under s51 of the Family Law Act 1986 which had been flagged up in the application referred to at paragraph 1(ii) above. She replied in the affirmative and I accordingly recorded that she had so applied in the face of the court, and dispensed with service given that H was present at the time and well aware of the application.
  9. W's non-recognition application was adjourned to this hearing. I also adjourned her multiple other applications on the basis that they could be resurrected in the event that I refused recognition of the Chinese divorce.
  10. I gave permission to H to file a witness statement in respect of the non-recognition application, which he duly did. Although he had indicated at the last hearing that he would never attend any further hearings in this country, he did in fact appear before me.
  11. The hearing took place remotely. I indicated at the outset my intention to deal first with the non-recognition application, as it seemed to me that consideration of the many other applications would depend on that outcome. The fact that both parties were unrepresented has not made my task any easier. However, I have a considerable volume of written material before me (well over 1000 pages), including:
  12. i) Statements from each party;

    ii) Statements dated 12 May 2020 and 21 January 2021 from H's Chinese lawyer who has been instructed by H throughout;

    iii) Report dated 12 June 2020 by a Chinese lawyer instructed by W for the purposes of the English proceedings;

    iv) Statement from a Chinese financier who has assisted W purportedly as a McKenzie Friend in the Chinese suit; I say purportedly, as there is nothing to suggest such assistance is recognised under Chinese law and procedure.

    I heard submissions and evidence from both parties, and I am satisfied that I have been able to reach an informed and fair decision. Each had the opportunity of cross examining the other, limited to issues as to non-recognition. In the event, H elected not to ask any questions and W asked only a handful. I myself asked a number of questions of each of them. I did not have long to form an impression of them, but in general I thought that each tried to tell me the truth on the non-recognition issue. What was very obvious was the almost palpable antipathy between them.

  13. Finally, by way of introduction, I observe that, as is so often the case, the jurisdiction issue has at its heart money. W pursues financial remedies in this country because she is confident that she would secure a better award than under Chinese law. H has no doubt obtained a Chinese decree to minimise W's financial claims; it is common ground that in China W would likely receive no financial relief at all. As I pointed out to both parties, in some senses the argument is futile. On the evidence I have seen and read, W would likely be able to pursue a claim for financial relief in England and Wales after an overseas divorce pursuant to the Matrimonial and Family Proceedings Act 1984. Within such an application she would be able to pursue the various interim orders outlined above which she has pressed so assiduously upon me. It is very difficult to see any practical difference for W in terms of financial remedy claims. That said, a decree of divorce is a momentous thing, and I must, it seems to me, judge the non-recognition application on its own merits regardless of the financial consequences.
  14. The background

  15. W is 34 years old. She is of Polish origin. H is 45 years old. He is of Chinese origin. They met in 2016. They started living together in late 2016 and married in 2017. Among the many things they disagree on is where they lived during the marriage. W is adamant that they lived in this country, albeit travelling internationally on business. H is equally adamant that they lived in China. Having read the documentation, in my view W makes out a prima facie case that their primary base was indeed this jurisdiction; she has produced evidence of payslips addressed to her in this country, invoices sent to the address here, the electoral register, tenancy documents, doctor's appointments, her employment contract and bank statements all referring to her address here. H has presented only minimal evidence in the proceedings and nothing beyond general assertion to substantiate his claim that China was their place of residence. That said, W told me that they both spent time in China for business purposes, and W was reasonably familiar with it.
  16. The standard of living, according to W's Form E, was opulent.
  17. W has 3 degrees. When they met, she was working on her own hi-tech start up. On her case, they agreed that she would join H's business as Chief Scientific Officer. The group had operations around the world. According to her, she played a vital role in the immediate striking success of H's business. I cannot, at this stage, be sure to what extent the business was pre-existing and established, or what contributions W made to its apparent success, but she certainly seems to have played a significant role in its operations. In one of the rare pieces of information contained in H's Form E, at Box 4.3 he says, "We worked together as co-founders".
  18. The precise structure of the group business is difficult to establish. In his Form E, H refers to holding 100% of the shares in 5 companies. W has referred to numerous other entities which she says are part of the group and which are owned by H. A witness statement by the former group Vice-President, appears to support her case, setting out those and other companies falling within the group and said to be belonging to H. In the same statement, the former Vice-President at paragraph 26 confirms W's contention that H agreed during marriage to transfer to her 50% of the business shares in recognition of her contribution. In the event, no shares were transferred by H and she has no legal or beneficial interest in any of the companies.
  19. The only UK business of any substance appears to have been A Ltd which in turn held 100% of the share capital in B Ltd, an overseas company. In September 2018 A Ltd transferred its shares in B Ltd to a young employee who W says was and remains nominee for H. Given that H in his Form E asserts 100% ownership of B Ltd, this may well be the case. According to W and the former Vice-President, the UK company was under investigation for £1.4m of unpaid taxes or duties. Text messages appear to confirm the same. H decided to asset strip the company, hence the transfer of the shares in B Ltd. The UK company, A Ltd., eventually went into insolvency. W says that this is symptomatic of what she openly and without hesitation describes as H's criminal wrongdoing. She alleges systematic fraud by him in multiple jurisdictions. She also alleges personal violence against her (including rape) and violence by him against others for business purposes. I cannot possibly reach any conclusions, even tentatively, on such serious allegations at this stage.
  20. The consequence is that there is now no company, or indeed any other asset, of any real value in this jurisdiction.
  21. In early 2019 the parties separated, so that the cohabitation and marriage in total lasted just over 2 years. There are no children. W was dismissed from her role as Chief Scientific Officer (she says because she directly challenged H about the alleged insolvency fraud) and successfully brought an Employment Tribunal Claim in this jurisdiction which resulted in a damages award of over £100,000, a sum which she has not received.
  22. For some months after separation W was supported, apparently generously, by H. She had unfettered access to a joint bank account overseas. She moved to London and rented a flat at a rental cost of about £51,000 per year. In October 2019 H abruptly closed the joint account which held about £1.4m. Curiously, H told me during the February hearing that he had no recollection of this.
  23. Since then, H has provided no financial support to W. She has not worked since her dismissal. She has a number of health problems, including juvenile ankylosing spondylitis, depression and irritable bowel syndrome. She has debts of about £600,000, comprising in large part credit card liabilities and monies owed to lawyers. She is in arrears on her rented flat. She is in receipt of Universal Credit and PIP.
  24. The Husband's wealth

  25. H's Form E dated 20 May 2020 is unacceptably bereft of detail. It does not identify the family home but says it is worth £756,136 with no explanation. He told me in February that it is an overseas flat worth $3m but subject to a $1m mortgage. No bank accounts, investments etc. are listed. He identifies the 5 companies referred to above but attributes no value. He says nothing about income. He does not estimate capital or income needs. By the end of reading his Form E, the reader is not much the wiser. The failure to provide even the most basic information to my mind entitles the court to draw inferences, provided that W can produce a prima facie case as to the sort of wealth available to H.
  26. W believes that H's wealth is vast. In my February judgment I said that "even at this interim stage, [the evidence] amply satisfies me that H is a man of considerable wealth, running into many millions of pounds". I was particularly influenced by the following:
  27. i) A valuation report produced by W estimating the value of the group at £42m. I accept that it is a short report, and based on a sole instruction. I do not necessarily accept that it is completely accurate, but it is based on an analysis of financial documentation and seems to me to provide some tentative guidance.

    ii) A consolidated group profit and loss account (albeit it is not clear precisely which companies are included) demonstrates for y/end 2019 global turnover of USD86m and profit before tax of USD15m.

    iii) Accounts for various companies. One in 2019 shows a profit of USD $1m and a balance sheet of $6.5m, with confirmation that H is the ultimate owner. Another shows turnover of USD38m and profit of USD2.8m.

    iv) The joint bank account upon closure in October 2019 had about £1.4m.

    v) During the marriage substantial sums were transferred out of the business to H, whether by way of dividends or otherwise is not wholly clear. In 2018 alone, over $2m was transferred to H. It also appears that large amounts of personal expenses were paid directly by the business, either accounted for properly (e.g by way of director's accounts or set against dividends) or, as W suspects, simply being plundered by H with no regard for proper accounting procedures; I cannot possibly determine where the truth lies at present.

    vi) During the marriage, according to H in his Form E, he supported W with £900,000pa for her personal spending.

    vii) In a short witness statement at p.739 of the Evidence bundle H says:

    "She is a big beneficiary for this marriage. Despite my hardship of my trading business in the past 3 years, I supported GBP145,000 in total from an overseas company, GBP945,000 from the UK company by paying her every month while she working on her business. By using the family money, she cleared USD50,000 debts in 2017, and she grew young now business from family money, she pushed me to send her GBP95,000 on 31st Dec 2018 by saying she buying property for family in UK, and did not share any information since then."
    Although it is not entirely straightforward to understand what this means, the general thrust is clear; very large sums were made available to W during the relationship.

    viii) The standard of living deposed to by W is strongly indicative of availability of large-scale wealth.

    H's threats to W

  28. W's case is that H is intent on ensuring she is unable to obtain any, or any reasonable, financial provision. She points to H closing the joint account and starving her of financial means. She says that H has been willing to disregard his obligation to give full disclosure. She refers to the transfer of shares in B Ltd, although it seems to me that such action, whilst showing a propensity to engage in disreputable business activity, may have been carried out in order to avoid paying sums due to creditors rather than to defeat W's claims. She refers to a disposal by H of shares in another company at an undervalue (€36,000 rather than USD 420,000) in June 2019, i.e at about the time of separation. She says that H has told her she would "get nothing", he would delay proceedings and she would run out of money. She produces voice recordings which transcribe as follows:
  29. i) Transcript made on June 9th 2019:

    "Me: Darling, before I leave I just want to ask you, you know, very nicely, very politely, one last time: Will you share our family pro?ts equally with me. Yes?
    Him: No, no, no. De?nitely not."

    ii) Transcript of recording made on June 13th 2019:

    "Him: Ok, you will see how much money you will get, ok?
    Me: Nothing, yes?
    Him: Yes."

    W's divorce suit in England

  30. W issued her divorce petition on 30 May 2019 based on unreasonable behaviour. H, by this time no longer living in the United Kingdom, attempted to evade service upon him of the petition in China (as indeed he subsequently did when W issued her Form A) as the process server's statement explains. W made applications for service to be effected by email. Various orders were made by the court in Bury St Edmunds.
  31. Eventually on 20 August 2020 the court confirmed deemed service, recorded that H had not filed an Acknowledgment of Service and authorised W to apply for directions for trial as an undefended cause. During oral discussions with me, H accepted that he had seen and been aware of the divorce documents since early 2020. W applied by Forms D80 and D84 on 21 September 2020 for the divorce to proceed through the undefended list.
  32. From W's point of view, it is unfortunate that of its own motion the court in Bury St Edmunds, aware that financial remedy proceedings were taking place in the Central Family Court, transferred the suit to the Central Family Court. The file then seems to have been transferred to the High Court because of the transfer of the financial proceedings. No further steps were taken by the court on W's undefended divorce application, despite chasing attempts by W. Had the suit proceeded expeditiously (and there is no obvious reason why it did not), she would likely have obtained a decree in this jurisdiction before H's Chinese decree.
  33. Wife's financial remedy proceedings

  34. W's Form A is dated 20 December 2019. There have been numerous proceedings in the Central Family Court, and it is apparent that H has attended and/or been represented at some, if not all, of them. Almost invariably, applications were simply adjourned for want of court time. Partly because W has been in person since March 2020, I sense that the court has struggled to get to grips with W's various applications, being presented with reams of documents within unsustainably short time estimates. There has, for example, never been a substantive First Appointment for reasons which are not wholly clear. On 19 June 2020 an order was purportedly made for the financial proceedings to be transferred to High Court level with a 3-day time estimate. For some reason the order was never drawn up, and it was therefore formally made by a different judge on 29 October 2020. This error of the court caused unfortunate delay, and is in no way W's fault.
  35. Husband's Chinese divorce proceedings

  36. I have referred to some of the difficulties in establishing the precise set of facts, but after extensive inquiry into the written material, it is tolerably clear that the position is as follows:
  37. i) H filed divorce proceedings in the Chinese court on 16 October 2019 which were "accepted" by the court on 7 November 2019. I understand "accepted" in this context to be equivalent to "issued". Grounds of divorce under Chinese law are in summary (i) bigamy, (ii) violence or abuse, (iii) "bad habits" such as gambling and drug abuse, (iv) 2 years separation and (v) other circumstances leading to the marriage breakdown. According to Article 22 of the Civil Procedure Law of the People's Republic of China, H was entitled to bring the suit there because of his Chinese domicile. I asked W about this. She did not understand the meaning of domicile and it seemed to me that she was therefore unable to refute the basis of jurisdiction in China relied upon by H.

    ii) There is no evidence that H brought the suit to W's attention at that stage; indeed, documents from his Chinese lawyers (in particular, the statement by his Chinese lawyer dated 12 May 2020) appear to accept as much, alleging that there was no contact information for her. W told me that H and his lawyers did not know of her residential address (she kept it private because of her fear of H), but she did have a long-standing email address which H, or his lawyers, did not attempt to use between 16 October 2019 and, as it transpired, 10 April 2020 (or, if they did, no evidence of attempted email communication was produced). Nor did they contact W's English solicitors who were on the record.

    iii) At all material times during the Chinese divorce process, H instructed Chinese lawyers. W, by contrast, never obtained legal advice or representation in China.

    iv) On 9 December 2019 a pretrial hearing took place at court. It is not clear if H/his lawyers were present, but W undoubtedly was not. The court adjourned the case to 22 April 2020. The court determined that W should be served by public announcement, in accordance with Chinese divorce procedure.

    v) Separately from the divorce proceedings, from some point in 2019 (the date is not clear) through to October 2020, W pursued one (or possibly two) employment tribunal claims against H (or his businesses) in China. She engaged Chinese lawyers for that purpose, as did H. Her claims were ultimately dismissed.

    vi) On 10 April 2020, H's lawyer sent an email (in English) to W's English lawyers to say that the Chinese court had "accepted" the divorce suit and the next hearing date was 22 April 2020. The English lawyers replied on 14 April 2020 that her firm was no longer on the record and W was acting in person.

    vii) The email of 10 April 2020 was copied to W. Her email address was correctly filled in, but W told me she did not receive it. There is no obvious reason why an email sent to the correct email address would not have reached W, but I am willing to give W the benefit of the doubt on this. On 14 April 2020, she told me, her English lawyer forwarded the email, but it went into junk mail and was in fact not opened by W until 20 April 2020, 2 days before the hearing. W instantly contacted H's solicitors, using the very same email account and address to which the email of 10 April had been sent. It is therefore clear that (a) as at 20 April 2020 W was aware of the proceedings and the next court date and (b) H's lawyers had one, but only one, method of communicating with W, namely by the email address which she herself has used for many years.

    viii) W immediately contacted a friend and business contact, Mr Z, who lives in China and works in the field of finance, to see if he could assist her. The statement of Mr Z establishes that either that day, or the next, he contacted the judge directly by telephone; the judge appears to have swiftly ended the telephone call.

    ix) The hearing duly took place on 22 April 2020. Mr Z attempted to attend as what W describes as a McKenzie Friend, but was not permitted to appear at the hearing. I am not entirely surprised that the judge took this course if Mr Z was not a lawyer and W was not present. A similar approach might well be adopted in this country when faced with such a situation. After all, although I do not know whether the equivalent of a McKenzie Friend exists in the Chinese legal system, in this jurisdiction a McKenzie Friend, with no rights of audience, would not ordinarily be permitted to participate in the court process in the absence of the litigant who s/he is there to assist. According to H's lawyers, W had made a request for an adjournment (exactly how and when is not clear). In any event, the judge decided to adjourn the proceedings to a date subsequently fixed as 24 November 2020, and publicly announced in accordance with Chinese procedure.

    x) On 15 May 2020 H's Chinese lawyers sent to W's email address a statement by a partner of his instructed firm which was lodged at the Central Family Court in London and set out in detail the chronology of the Chinese suit. W told me that she did not receive it. On balance I am willing to accept that, although it is surprising, but it seems to me that (a) H's lawyers were entitled to send it to the email address from which W had previously communicated with them, and (b) W had not suggested any alternative email address for communication.

    xi) On 12 June 2020 W obtained a report from a Chinese lawyer for the purpose of the English suit. The essence of the report's conclusions was:

    a) If W obtained an English decree of divorce, that would be recognised by the Chinese court;
    b) If divorce proceeded under Chinese law, W would be entitled to 50% of assets in China built up during the marriage, but no further award in her favour would be made in respect of assets outside China and/or pre-owned assets. It is common ground that, as a result, W would receive nothing.
    W was therefore fully aware of the consequences of a Chinese divorce upon her financial claims.

    xii) On 17 June 2020 H's Chinese lawyers sent W an email (in English), to W's email address asking her to provide details of her Chinese lawyer's name and contact information. Again, W told me that she did not receive it, and again I am satisfied that H's lawyers had no real option but to send it to the email address from which W herself had communicated, and was the only available method of attempting to communicate with her.

    xiii) In September 2020 W (according to Mr Z's statement and confirmed by W in her oral evidence although the document was not produced) wrote to the judge, criticising the procedure and asking for Mr Z to be allowed to appear as W's McKenzie Friend. I asked W whether she had executed a Power of Attorney in favour of Mr Z and she replied that she did not understand the distinction between Power of Attorney and McKenzie Friend. It seems likely to me that no formal Power of Attorney was executed (certainly none has been produced in evidence). This, I was told by W, is the only written communication with the Chinese court she had at any stage.

    xiv) In October 2020 Mr Z telephoned the court again and spoke to the judge asking whether she had received a letter from W; the judge replied by asking him not to call again.

    xv) On 20 November 2020 Mr Z saw notice of listing of the case to take place on 24 November 2020. It is not obvious to me whether he had previously known of the date, but he appears to have been checking the court noticeboard.

    xvi) A further hearing took place on 24 November 2020. Mr Z, according to his statement, presented an authorisation from W to act as her McKenzie friend. Again, the judge refuses to allow Mr Z to represent W as he was not a lawyer, nor did he have Power of Attorney on W's behalf. There appears to have been a heated argument between the judge and Mr Z.

    xvii) On 14 December 2020 the Chinese court gave judgment and determined that "The plaintiff…is permitted to divorce from the defendant". The judgment was publicised by a People's Court announcement in the People's Court Daily on 27 December 2020.

    xviii) The ruling records that the defendant may appeal within 30 days of service. Service is deemed as 3 months unless the defendant attends court before then to obtain a copy. It follows that time for appealing expired on 14 April 2021. W told me that she did not appeal.

    xix) It is not in doubt that this constituted the granting of the divorce.

    Non-recognition: Law

  38. Section 51(3) of the Family Law Act 1986 provides:
  39. 51 Refusal of recognition

    (3) Subject to section 52 of this Act, recognition by virtue of section 45 of this Act of the validity of an overseas divorce, annulment or legal separation may be refused if—

    (a) in the case of a divorce, annulment or legal separation obtained by means of proceedings, it was obtained—
    (i) without such steps having been taken for giving notice of the proceedings to a party to the marriage as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken; or
    (ii) without a party to the marriage having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as, having regard to those matters, he should reasonably have been given; …

    (b) [not relevant]

    (c) in either case, recognition of the divorce, annulment or legal separation would
    be manifestly contrary to public policy".
  40. In Duhur-Johnson v Duhur-Johnson [2005] 2 FLR 1042 at para 44 Mr Jeremy Richardson QC set out six propositions where he summarised the relevant law as follows:
  41. "First: The power contained in section 51(3) as a whole provides for wide judicial discretion. The provisions need not be exercised if the interests of the respondent spouse (as opposed to the petitioning spouse) are met by other means (An example of this is El Fadl v El Fadl). It seems to me that it is important to emphasise that those interests must be safeguarded. I would anticipate that this approach would only be adopted where the respondent spouse has no option under the overseas divorce law but to submit to the divorce. The important point to note is that the judicial discretion is wide and the applicability of the section will vary depending on the many and varied circumstances of each case.
    Second: When considering section 51(3)(a)(i) a judge must ask whether reasonable steps have been taken by the petitioning spouse to notify the respondent spouse of the divorce proceedings in advance of them taking place.
    Third: In answering that question the judge must look at all the circumstances of
    the case and the "nature of the proceedings" in the overseas jurisdiction.
    Fourth: Whether reasonable steps to notify the other party have been taken is to be judged by English standards having regard to the nature of the overseas proceedings.
    Fifth: Whether reasonable steps have been taken is a question of fact in each case (it must also be remembered that there are cases where reasonable steps have been taken but they were unsuccessful or, in rare cases, where it is entirely reasonable for no steps to have been taken).
    Sixth: It is important to note that whether the respondent spouse has notice of the proceedings is not the issue. It is whether the petitioner spouse has taken reasonable steps to notify the other party. The focus of enquiry is upon the actions of the petitioning spouse not simply a question of whether the respondent spouse knew about the proceedings."
  42. These propositions were adopted and applied by Holman J in Olafisoye v Olafisoye [2010] EWHC 3540 (Fam) and Peter Jackson J (as he then was) in Ivleva v Yates [2014] EWHC 554 (Fam). As Holman J noted at paragraph 34, there are two stages namely:
  43. "First, it must make an assessment or judgment whether such steps were not taken as 'should reasonably have been taken'; but even if the court adjudges that they were not, that merely opens the door or gateway to the second stage and an overall exercise of discretion whether or not to recognise the overseas divorce.
  44. Holman J went on to say in respect of the second stage at paragraph 35 that:
  45. "In exercising the second stage of discretion, if the gateway is open and it arises, the court should, in my view, still be very slow to refuse recognition of the decision and order of the foreign court, at any rate when, as here, it is clearly that of an independent, properly constituted court operating a procedure and applying substantive law (as is clear from the documents in this case) which substantially accords with our own. It is not simply a matter of 'comity' or respect for the foreign court. Orderly legal relationships in the international world require that, so far as possible, judicial outcomes in one country can be relied upon in all others provided there was (as here) a proper connection with the first country."
  46. Non-recognition on the grounds of public policy under s51(3)(c) should be "exercised sparingly"; per Thorpe J (as he then was) in Eroglu v Eroglu [1994] 2 FLR 287. In El Fadl v El Fadl [2000] 1 FLR 175 Hughes J (as he then was) said at 190F:
  47. "I am satisfied that however much a unilateral divorce without notice may offend English sensibilities, comity between nations and belief systems requires at any rate this much, that one country should accept the conscientiously held but very different standards of another where they are applied to those who are domiciled within it".

    Non-recognition: outcome

  48. Having heard the parties and read the extensive documentation, I am satisfied that W's application for non-recognition of the Chinese divorce should be dismissed.
  49. I acknowledge and accept that she was not made aware of the divorce proceedings when they were issued on 16 October 2019, and I have no reason to doubt W's assertion that she was not aware of the first court hearing on 9 December 2019 which adjourned the proceedings until 22 April 2020. However, with effect from 20 April 2020, she was so aware because she had received an email from H's Chinese lawyers, addressed to her former English solicitor, and copied to her. There can be no doubt that from 20 April 2020, until decree on 14 December 2020, a period of some 8 months, she knew of the existence of Chinese divorce proceedings. She knew which court was seised and knew the identity of the judge. Moreover, it was reasonable for H's lawyers to have sent further emails to her about the proceedings on 15 May 2020 and 17 June 2020 given that they had a long-standing email address for her, which she had used to communicate with them on 20 April 2020, in circumstances where W's residential address had been concealed from H for security reasons.
  50. I do not underestimate the difficulties for a foreign national, with no command of the language and limited resources, during the global pandemic, attempting to participate in proceedings in China. Similar difficulties would apply in reverse for a Chinese national in English proceedings. Indeed, these sorts of problems no doubt apply in multiple jurisdictions around the world. The mere fact of such problems, which are endemic in this country as in many others, cannot without more disentitle the petitioning spouse (H) from relying upon a properly obtained divorce. The issue is whether on the facts of this case, and in these circumstances, the s51 exception is established.
  51. It seems to me that H took steps to notify her. They undoubtedly should have attempted to contact her well before 10 April 2020, but the first hearing was adjourned to 22 December 2020 and little or no prejudice seems to have been occasioned by W not being aware of the hearing on 9 December 2019. H and his lawyers were, it seems to me, entitled to use W's email address on 10 April 2020 and their email did reach W, albeit circuitously on 20 April 2020. The correct email address for W was used and it does not seem to me that H's lawyers had any other realistic means of communicating with W. W, having been made aware of the proceedings, had the opportunity to participate. She was aware of the ongoing suit, including the hearings on 22 April 2020 and on 24 November 2020. She could have attended in person, perhaps with a friend or interpreter. She could have appointed a lawyer; although there would have been a cost, she was able to pay for an expert Chinese law report in June 2020, and Chinese employment lawyers during 2019/2020. She could have executed a Power of Attorney to authorise attendance on her part. True, she asked the court to hear from Mr Z as McKenzie Friend but:
  52. (i) I do not know if a process similar to the McKenzie friend is available in China; and

    (ii) The availability of a McKenzie Friend under English law only allows that person to assist the litigant (in this case W), not to represent her. If something similar applies in China, it is unsurprising that the court was not minded to hear from the McKenzie friend given that W did not attend.

  53. It is apparent that W wrote to the court once in September 2020, criticising the legal procedure. W told me that she did not attempt any other written communication with the court, not even to enquire about how best to participate. To have written to the court only once in 8 months in respect of matters of such apparent importance was surprising. To have relied upon Mr Z on 20 April was perhaps understandable given the shortness of time available to her after notification of the hearing date, and it is important to note that the proceedings were adjourned to a later date such that nothing of substance occurred. But to have relied upon him thereafter, including at the 22 November 2020 hearing, notwithstanding his experience of being excluded at the hearing on 22 April 2020, may have been unwise.
  54. Even at the time of the hearing before me in February, W was well aware of the Chinese decree and the availability of an appeal route. She chose not to enter an appeal.
  55. I accept that for a litigant in person, these matters are much more difficult to navigate than when represented, but it has repeatedly been said in this jurisdiction that litigants in person are subject to the same law and procedural rules as represented parties. The same, I assume, must be true in China. It cannot be the fault of the Chinese court, or even of H, if W does not take steps available to her.
  56. I am satisfied that:
  57. i) This is not a case where the respondent spouse (in this case W) had no option but to submit to the divorce;

    ii) Looked at in the round, the petitioning spouse (in this case H) took reasonable steps to notify W of the divorce proceedings. To have used her long-standing email address in circumstances where W's residential address was not known to him was the only available way of notifying her;

    iii) W had reasonable opportunity to take part in the proceedings.

  58. It is apparent from W's oral evidence and her extensive written evidence that she at all times considered England and Wales to be the appropriate forum for the divorce and thereby the financial proceedings. That was very much the focus of her opposition to the Chinese proceedings. It is also what prompted her to produce a report on Chinese law for the English proceedings in June 2020, setting out the lack of financial relief available to her. But the issue before me concerns the pronouncement of the decree in China, not a forum conveniens dispute.
  59. It is of note that although H initially avoided service, he has never actively opposed the English suit. W has had ample time to progress her divorce in England. It may be that the court did not act as expeditiously as it should have done to progress decree nisi, but that is not H's fault. From the date of W's English petition (May 2019) to the date of H's Chinese decree (December 2020), W had over a year and a half to secure decree nisi, with no opposition from H. At least from April 2020, W knew of H's Chinese suit and had, as it turned out, nearly 8 months to take steps to ensure decree nisi was pronounced. I judge that H did not seek to deliberately delay the English divorce for tactical reasons; he simply ignored it.
  60. I therefore conclude that refusal of recognition under s51(3)(a) is not made out and in any event would exercise my discretion to reject the application.
  61. As for the public policy ground for non-recognition under s51(3)(c), W makes the gravest of accusations against the Chinese legal system. She alleges racial discrimination, endemic corruption and blatant wrongdoing. Yet, on the evidence before me, H was entitled to bring divorce proceedings in China; the grounds of divorce are not wholly dissimilar to those appertaining here; Chinese procedural rules were complied with; the whole process took over a year; an appellate route was available to W; the decree was validly obtained. The principle of international comity requires respect and recognition for the judicial acts of another nation. It is not an absolute rule, but in my judgment, W falls far short of establishing the public policy ground.
  62. It follows that:
  63. i) W's application for non-recognition is dismissed;

    ii) Her divorce suit and financial remedy application must also be dismissed.

  64. All that said, as I have indicated, W may very well be entitled to bring proceedings under the 1984 Act for financial relief after the overseas divorce. I asked her about this, and she replied that she believed (wrongly) that this route is not available to her as a result of the departure of the United Kingdom from the European Union. It is common ground that W will receive no financial award under Chinese law. Prima facie, she has solid grounds for a leave application. If she succeeds, the difference in approach between the 1973 Act and the 1984 Act is likely to be negligible. However, that must await another day. I shall direct that if W makes an application under s13 of the Matrimonial and Family Proceedings Act 1984 for leave to bring proceedings for financial relief after the overseas divorce, it shall be listed before me on notice to H, and with a ½ day time estimate.


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