Nicholas Allen KC (sitting as a deputy High Court judge). Final hearing concerning H’s application for recognition of divorce proceedings brought by H in India, and H’s challenge to the jurisdictional basis of divorce proceedings brought in the UK by W.

Background

The parties were married in November 2010 in India and had two children, N (born September 2011) and K (born February 2019). In 2012, the parties moved to the UK and purchased a house in the UK. They returned to India in 2019.

There was a dispute between the parties as to whether the return to India was intended to be a permanent relocation: H argued that it was; W’s position was that it was not and the trip was simply for the purposes of a holiday. In November 21, Mostyn J determined that the trip was intended as a permanent relocation, within summary return proceedings initiated by H.

In March 2020, W moved out of the home and into her family’s home (also in India) alleging domestic abuse. In April 2021, W returned to the UK with N, but not K. H was unaware both that W had returned to the UK with N, and that K remained in India. At the time of the final hearing, H was living in India, and W was in the UK.

In July 2021, H issued divorce proceedings in India. Later that month, W filed a divorce application in the UK, which was issued in August 2021. The parties’ decree nisi was granted in the UK in December 21 and W issued English financial remedy proceedings in February 2022. In September 2022, the parties’ marriage was dissolved in India and the divorce decree was issued, all on an ex parte basis as W remained in the UK. It was her case that she had not known of these proceedings.

In August 2023, W applied in India to have the Indian decree set aside on grounds of procedural unfairness, lack of proper notice, and failure to participate in the process. It was agreed on W’s behalf that the court should determine H’s application on the basis that there was (and would continue to be) a valid Indian divorce, without prejudice to W’s position in the Indian proceedings. W’s petition for divorce and her application for financial remedy was stayed pending the outcome of the contested hearing.

The questions for the court were, [46]:

1. Was there a valid decree nisi in the UK proceedings, even though (a) the UK court was not made aware of Indian proceedings before the decree nisi was made; and (b) H challenged the basis for the petition (the habitual residence of the parties)?
2. Should the basis of the petition be amended to an alternative jurisdictional ground?
3. Should the Indian divorce be recognised in the UK under FLA 1986, taking into account: the need for the UK court to ascertain the status of the Indian divorce for the purposes of Indian law; the fact that the UK decree nisi was pronounced prior to the Indian decree; and W was claiming that she was not made aware of the divorce proceedings in India prior to the decree being made?

The court made reference to FLA 1986, s 46 (grounds for recognition of an overseas divorce) and s 53 (refusal of recognition of an overseas divorce).

Analysis under FLA 1986

There were four questions to be asked under the FLA 1986:

1. Section 46(1)(a): was the divorce ‘effective’ in India?
2. Section 48: what were the ‘facts’ implied by the Indian divorce documents and how does W’s ‘participation’ in those bind the UK court?
3. Section 51(3): were ‘reasonable steps’ taken to give notice to W and/or was she able to participate in proceedings?
4. Section 51(3)(c): were there any public policy objections to recognition?

Effectiveness of the divorce – s 46(1)

The court determined that the divorce had been effective:

• ‘Effective’ is less exacting than ‘valid’ and is a less rigorous standard (Kellman v Kellman [2000] 1 FLR 785, 797).
• The SJE jointly appointed by the parties had confirmed that the divorce would be valid in India if the essential requirements of Indian law were met (which could only be determined by the Principal Judge of the Family Court).

Facts implied and W’s participation – s 48

The court referred to A v L (Overseas Divorce) [2010] 2 FLR 1418: for there to have been participation, there must have been some formal step taken at least equivalent to appearance at English proceedings. It was accepted that W took no part in the Indian proceedings before the decree was made; she did not appear in the proceedings.

Reasonable steps to give notice – s 51(3)

A large portion of the judgment was devoted to whether reasonable steps had been taken to put W on notice. The court made reference to Dahur-Johnson v Dahur-Johnson (Attorney-General Intervening) [2005] 2 FLR 1042 at [44], which established six propositions:

1. The power contained within s 51(3) provides for wide judicial discretion.
2. A judge considering s 53(1)(a)(i) must ask whether reasonable steps have been taken by the petitioner to notify the respondent of the divorce proceedings in advance of them taking place.
3. The judge must look at all the circumstances of the case in answering that question, and the nature of the proceedings abroad.
4. The question of whether reasonable steps to notify the other party have been taken is to be judged by English standards.
5. The question of reasonable steps is one of fact.
6. The question is not of whether the respondent had notice of proceedings or knew about the proceedings; the focus is on the actions of the petitioner.

In Olafisoye v Olafisoya (No. 2) (Recognition) [2011] 2 FLR 564, [34], this had been reduced to a two-stage test; [61]:

1. Were steps taken ‘as should reasonably have been taken’ to notify the respondent?
2. Even if not, should the court exercise its discretion in to recognise the overseas divorce.

The court referred also to El Fadl v El Fadl [2000] 1 FLR 175 (the discretion is to be used sparingly) and Golubovitch v Golubovich [2010] 2 FLR 1614 [69] (if the discretion ground is made out, refusal of recognition must follow).

H had filed and served two delivery receipts which stated that on 7 February 2022, two letters were posted by the Indian Family Court to two addresses: one of W’s father; and one of W’s now former employer.

W’s original argument was that those receipts were fraudulent, but no positive argument to this effect was advanced at the hearing. W suggested that it was impossible to know whether the letters were delivered and who, if anybody, signed for them. W argued that if her father had received the letters, he would have told her. Within the paperwork from the Indian proceedings, however, was evidence that an attempt was made to deliver the divorce documentation at MGF’s address, but there was a refusal to accept it.

W’s main argument was that she had executed a Power of Attorney in her father’s favour which needed to be admitted, accepted and/or registered in each separate set of proceedings to be valid, and that it had not been filed or submitted within the Indian proceedings (which was accepted by H). W’s argument was summarised as follows [85]:

‘(i) the Indian court may have erroneously authorised service on W’s father acting as W’s agent without the Power of Attorney having formally been admitted or registered; or (ii) the Indian court may have thought there had been service at address W was living at when this was not the case.’

W’s argument was rejected. Albeit at the eleventh hour, H filed with the court the relevant Indian procedural rules, which stated that if there is an ‘agent’ resident in the jurisdiction (in this case, MGF), who was empowered to accept service of the summons, the summons would be taken to have been validly served on him – even if the agent refused delivery.

W’s POA argument was therefore rejected and deemed ‘something of a red herring’; [89]: it didn’t matter whether the POA had been admitted into those proceedings, whether the Indian court knew of the POA, or whether there was a specific order directing service on MGF, since ‘reasonable steps’, to be taken in accordance Indian procedural rules, did not require W to be served in this jurisdiction, nor did they require MGF to have accepted service.

Also relevant and taken into account in rejecting W’s argument was:

• H’s argument that he was unsure of W’s address. The court considered it likely that W will have wanted to keep her address confidential from H: she had filed a C8 in the UK proceedings; and the very fact she had fled to the UK without informing H would indicate her wish for her whereabouts to be kept confidential.
• W’s argument that she had not known of the divorce proceedings was rejected given the evidence as to W’s and MGF’s relationship. On W’s own evidence, they had frequently discussed the various proceedings involving W and H in India.
• The Indian court was aware that W was living in the UK: the divorce petition stated that W was ‘at present’ at her UK address and H said during those proceedings that he ‘came to know’ that W was in London.
• W had blocked H’s email address so he could not have served her by that method.

Overall, therefore, it was found that reasonable steps were taken to put W on notice.

The court refused to exercise its discretion on the basis that W should not be able to take advantage of the fact that service at MGF’s address had been refused.

Public policy objections – s 51(3)(c)

Since W’s argument that the postal receipts of the service of the summons had been manufactured was ultimately not pursued, there was also held to be no basis on which to decline to recognise the divorce on public policy grounds.

H’s challenge to the jurisdiction basis of the proceedings brought in the UK

There was no need for the court to consider the question of jurisdiction since it had been held that the Indian divorce could be recognised in the UK, but the question was considered in any event.

The court referred to the Domicile and Matrimonial Proceedings Act 1973, s 5(2): the questions were whether H was habitually resident in England and Wales at the date of the application; or whether W was domiciled and habitually resident in England and Wales and had resided there for at least 6 months prior to the application being made.

Habitual residence

The court referred to TI v LI [2024] EWFC 163, [91], in defining ‘habitual residence’ and concluding that D was not habitually resident in the UK at the relevant time (this being 30 June 2021, when W was served). It was relevant that:

• H had lived and worked in India since 27 June 2019;
• H had no family in the UK (save for W and N);
• H had family responsibilities in India.

Domicile

It was common ground that W had a domicile of origin in India. The question was whether she had (re-)acquired a domicile of choice in England and Wales between 8 May 2021 (when W returned to England) and 30 July 2021 (date of filing the petition).

The court referred to (i) Barlow Clowes International Limited v Henwood [2008] BPIR 778; (ii) Udny v Udny (1869) LR 1 Sc & Div 441; and (iii) Inland Revenue Commissioners v Bullock [1976] 1 WLR 1178, and summarised that:

• ‘domicile’ required residence in a country (in terms of physical presence as an inhabitant), and an intention of permanent or indefinite residence;
• it was a question of fact whether necessary intention has been acquired;
• the burden of proof was on W in establishing that the necessary intention had been acquired;
• it is ‘beyond balance of proof’ to prove domicile of origin has been lost (Steadman v Steadman [1976] AC 536);
• W’s conduct was to be viewed as a whole;
• every case is to be assessed separately, with attention being paid to the party’s history and personality;
• the question is what conclusion is to be drawn from all the circumstances.

On the facts, W argued that she was domiciled in the UK at the relevant time since (amongst other matters listed at [117]):

• W had worked and lived in the UK since 2012;
• K had been born in the UK;
• W had been granted indefinite leave to remain in 2017;
• W lived in London and regarded it as her permanent home;
• W had been employed in UK since 2014;
• W paid taxes and national insurance contributions;
• W had registered a UK company in her own name in 2017;
• W had spent only 136 days only outside the UK during 2012–2019;
• W had a UK bank account containing around £20,000.

It was held that W had reacquired domicile. The court bore in mind the facts going towards her being domiciled in the UK which pre-dated W’s return to the UK in 2020, since she had been returning to England not arriving for the first time. It was also held to be relevant that:

• within a month of being in the UK, W had made an FLA application for an occupation order to move back into the London home;
• W had opposed H’s application for summary return of N to India;
• W had acquired British citizenship throughout naturalisation and surrendered her Indian passport in April 24 because of her renunciation of Indian citizenship and acquisition of citizenship in another country; and
• W did not (unlike H) obtain Overseas Citizenship of India.

The court noted that domicile, not habitual residence, had been the correct jurisdictional ground on which W should have pleaded her case. The court considered the possibility of W amending her grounds so as to plead on the basis of domicile instead and, in doing so, considered several cases:

1. Cazalet v Abu-Zalef [2024] 1 FLR 565 (circumstances in which a decree nisi can be rescinded include (as listed in Re A and B (Rescission of Order: Change of Circumstances) [2022] 1 FLR 1143 and in NP v TP (Divorce: Application for Rescission of Order) [2023] 1 FLR 270 per Cobb J) ‘innocent (or otherwise) misstatement of the facts on which the original decision was made’). This gave rise to the potential argument that once a decision is made on a particular jurisdictional basis/set of facts, that decision would need to be set aside/the decree nisi rescinded rather than simply amending the application form.
2. Rogers-Headicar v Headicar [2004] EWCA Civ 1867 and R v R [2006] 1 FLR 389, which suggested that it is the question of whether there is jurisdiction rather than the basis on which it is pleaded that is important.
3. M v P (The Queen’s Proctor Intervening) [2019] 2 FLR 813, in which the amendment of a petition post decree absolute was allowed where it had wrongly relied on two years’ separation and the applicant wanted to substitute unreasonable behaviour, under a purposive use of FPR 4.1(6) – but this amended the ‘fact’ for the ground of divorce, not the jurisdictional ground.
4. X v Y (Rectification of Decrees) [2020] 2 FLR 981 (Fam), in which FPR 4.1(6) was used to amend a petition which had incorrectly given the date of the parties’ second marriage – although, again, this did not concern an amendment to the jurisdictional ground.
5. The Lord Chancellor v 79 Divorced Couples [2024] EWHC 3211, in which the court had been critical of artificial and overly technical distinctions being drawn in this area and seemed to prefer a more purposive approach.

In any event, the court concluded at [129] that ‘this may well not be a straightforward procedural issue to determine’ and that it was inappropriate to make the determination unless and until W was ultimately successful in setting aside the Indian decree, and applied to lift the stay otherwise remaining in place.

Disposal

The court held that H’s Indian divorce decree would be recognised in the UK, but that it was not appropriate to dismiss W’s application for divorce in the UK, due to the ongoing proceedings regarding the Indian decree.

The court noted that if the Indian decree were to be later set aside (i.e. W’s application in India to set aside that application was successful), recognition of that decree in the UK would fall, as there would be no foreign divorce for the English court to recognise.

The court maintained the stay on W’s divorce proceedings in the UK and held that, if W’s application to set aside the Indian decree were to be unsuccessful, the UK decree nisi would automatically be set aside and the UK divorce proceedings dismissed, and if W’s application to set aside the Indian decree were to be successful, W would have liberty to apply in the UK to lift the stay.

Anonymity

It was relevant in conducting the balancing exercise found within Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593 in deciding whether to anonymise the parties that (i) W was ambivalent as to anonymisation; (ii) the case was technically heard in open court; and (iii) none of the Indian judgments involving the parties were anonymised.