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David Hodson on International Law: Non-recognition of Bulgarian divorce under Brussels II

Date:9 MAY 2013
Family lawyer

International Family Law Practice by David Hodson

David Hodson

The basis of Brussels II is the automatic recognition across the EU of divorces granted in a Member State. It is part of the EU creation of a common family law justice system. Non-recognition by one Member State of a divorce properly and regularly granted in another Member State is a severe and dramatic step.  It has just been taken.

Judgments, which for these purposes are final divorce decrees, must be recognised across the EU by all Member States without any special procedure being required, without the jurisdiction of the court making the divorce being reviewed (Art 24), even though the divorce would not have been allowed in the other Member State on the same facts (Art 25) and under no circumstances may it be reviewed as to its substance (Art 26). There are grounds for non-recognition if recognition would be manifestly contrary to the public policy of the Member State in which recognition is sought or the divorce was in the absence of one party (they were not served with documents or in sufficient time to have an opportunity to take part) (Art 22). But these Art 22 provisions for non-recognition are narrow and exceptional.

We are told by Brussels that we should not be challenging family law procedures in other countries even though they are incredibly slow nor should we contemplate Hemain-type temporary anti-suit injunctions in respect of other EU countries. As the thrust of the Brussels legislation is mutual respect and recognition, it would have to be very exceptional for the public policy of one Member State to refuse to recognise a divorce properly granted in another Member State. This has occurred in the recently reported Anglo Bulgarian case of Yordanova v Iordanov (2013) EWCA 464.

It was a short and unsatisfactory marriage between a Russian wife and Bulgarian husband in September 2006. At Christmas 2006 in Bulgaria with major marital difficulties, they each signed powers of attorney before Bulgarian lawyers to lead to divorce proceedings, which commenced the following summer, 2007, and they were finally divorced by January 2008. There was evidence that the Bulgarian judge investigated the divorce application ‘thoroughly and conscientiously' and reached conclusions on the submissions from the separate lawyers for both parties. The lawyers were each in receipt of the relevant powers of attorney (a continental European form of instructions to lawyers). The husband remarried in Bulgaria. In May 2011, more than 3 years after the Bulgarian divorce in which she was legally represented, the wife presented an English divorce. The husband was completely bemused and said they were already divorced and applied to strike out.

After a complicated procedural history and then with oral evidence, the first instance county court judge decided that in reliance on Art 22, he would not recognise the Bulgarian divorce. He accepted the evidence of the wife that she had no idea that the documents she signed, the Bulgarian power of attorney, would have the consequence that she would be divorced. This was a factual finding which the Court of Appeal said it would not revisit or set aside. It fully acknowledged that the divorce was regular and valid according to the law of Bulgaria and that to refuse recognition to the divorce would create different outcomes in law in England and in Bulgaria and be a manifest injustice to the woman he had subsequently married as well as to the husband. The wife said she had not understood that signing the power of attorney would enable him to dissolve the marriage at will and without notice to her and she thought it was only dealing with property issues between them.

The Court of Appeal acknowledged that the first instance judge could just as easily have decided in favour of the husband and recognised the divorce. The crucial issue was the assessment of credibility of each party. There was no evidence before the court about the relationship between the wife and the Bulgarian lawyer who had apparently represented the wife before the Bulgaria divorce court and put forward written evidence to the court. It must be a matter of conjecture about what that lawyer told the wife had occurred in court, why the wife thought it necessary for her lawyer to in court and the wife thought what the Bulgarian proceedings had been about. It seems hard, in the perception of English practitioners, to conceive that this situation could have occurred and the client, the wife, not know what had happened.

The Court of Appeal said that it was evident to the first instance judge that ‘something that would pass muster in Bulgaria would simply not pass muster here in terms of our concept of justice and our concepts for due process in proceedings which have the consequence of changing status' (interestingly, pass muster means to meet a required standard and derives from the 1570s, originally meaning satisfactorily to undergo an assembling of troops for inspection and review without censure.)

The court accepted that it would be an exceptional case in which a person's divorce and subsequent remarriage may be recognised in one Member State of the EU and not in another and that this case was exceptional.

Nevertheless with all these caveats, and without having the benefit of reading the evidence relied on by the first instance judge, it is still a very bold and substantial judgment for the Court of Appeal. There had been no procedural irregularities in Bulgaria. The wife was represented before the Bulgarian court by a Bulgarian lawyer who presumably believed she had instructions to proceed with the Bulgarian divorce. It was not a short paper application or an administrative step taken. It was said the Bulgarian judge had conscientiously and thoroughly investigated the case and it was fully regular. The husband's remarriage was good in Bulgarian law. Yet still the Bulgarian process was found not to meet the required standard of the English concept of justice, and that a review did not pass the English courts without censure.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice. 

David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.