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26 JUL 2013

MARRIAGE: NP v KRP (Recognition of Foreign Divorce) [2013] EWHC 694 (Fam)

(Family Division, Parker J, 23 March 2013)

The marriage between the husband and wife, celebrated in India, lasted for 2 years before the husband affected a panchayat divorce registered in Gujarat. The wife claimed that the divorce should not be afforded recognition pursuant to s 55 of the Family Law Act 1986 on public policy grounds.

Prior to the wife's decision to dispute the divorce both the Indian and British authorities had recognised the divorce, permitting the husband to remarry and grant the husband's new wife a spousal visa to enter the UK.

The wife claimed she only signed the divorce papers by duress and that she did not understand what the deed was for.

The judge found that this was a proceedings, non-judicial divorce. In addition the husband instigated the divorce and the wife assented to and participated in the process which took place in front of members of the local community. The divorce was validly registered by the registrar and the husband had no expectation that the wife would contest it and remarried on that basis.

The wife sought to argue pursuant to s 51(3)(c) of the FLA 1986 that it would offend against substantial justice to afford recognition to the divorce. The test had to be narrowly and stringently applied and the wife had to submit her case on the balance of probabilities.

The wife had been dishonest in a number of aspects of her evidence and it was not possible to find that she had acted under specific duress. Delay was an important public policy consideration and given the delay of 2 years before the wife challenged the divorce it was significant and inconsistent with a challenge to the divorce. It was likely that the wife would not have mounted the challenge if she had been granted leave to remain in the UK. In addition the husband had built a new life with his second wife and to allow the application would create untold havoc on their lives.

The wife's application was dismissed.


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