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Louisa Gothard
Louisa Gothard
Senior Solicitor, Head of Family Law
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Decrees in multiple EU jurisdictions: Mensah v Mensah
Date:19 MAR 2018
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Mensah v Mensah [2018] EWHC 484 (Fam) is an interesting recent decision pertaining to the Brussels II Regulation (BIIR) and specifically the recognition of a French divorce order.

The wife had appealed the registration of a French divorce order under Council Regulation 2201/2003 and the husband had applied for the English decrees to be set aside.

Background

The parties married in 1988 but by no later than 2011 had separated. Both parties were French nationals, they had lived for at least some of the marriage in England and at the time of the breakdown of the marriage the wife was living in England.

In 2011 the wife petitioned for divorce in England and Decree Absolute was granted in 2016.

In 2012 the wife petitioned for divorce in France and a Decree of Non Conciliation was granted in 2013 and a final Decree in 2015 stated that the divorce was effective from the date of the Non Conciliation Decree.

Following the Decree of Non Conciliation the wife did not progress the proceedings in France but did write to the French Court on occasions in 2014 setting out her position that the English courts should have jurisdiction. The French proceedings progressed on the basis of the husband’s summons.

The husband argued that he had not been served with the English divorce proceedings and was not made aware of them until 2016. He argued that the wife had been aware of and served with the French proceedings and that judgment had not been given in default of appearance. He argued that the English decrees were a nullity as the marriage had already been dissolved in France.

The wife argued that she was not properly made aware of the French proceedings and that the English court had jurisdiction, the wife said that the husband had been served with and was aware of the English proceedings. She argued that the English decrees should be allowed to stand and that the French orders should not be recognised as they were made in default of appearance and as the English petition was issued before the French petition.

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The French judgment

The French judgment states that the wife had failed to satisfy the court as to lis pendens, determined that it had jurisdiction and granted the divorce and dealt with financial matters. The wife was served under French law with a copy of the judgment on 26 February 2015, albeit that she denied knowledge of the judgment at this stage, and a certificate of non appeal was issued on 17 April 2015.

The English proceedings

There was a dispute between the parties as to whether or not the husband had been served with, had any knowledge of and/or had engaged in the English proceedings. There were letters and acknowledgements of service on the court file purportedly from the husband but he denied any knowledge of these.

In any event, the wife first applied for Decree Nisi on 3 September 2014 and again, after an incomplete acknowledgement of service was filed, on 15 May 2015. The certificate of entitlement was not signed until either 14 April, 14 September or 18 December 2015, there being different and unclear dates on the certificate.

The court noted that although the wife made reference to the French proceedings in her application for Decree Nisi, this did not trigger investigation by the court as to whether or not there were ongoing proceedings in another EU jurisdiction.

BIIR 

Article 21 of Chapter III of BIIR states inter alia:

'A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required … any  interested party may, in accordance with the procedures provided for in s 2 of this Chapter, apply for a decision that the judgment be or not be  recognised.'

Article 22 of Chapter III of BIIR states inter alia sets out the grounds for non-recognition for judgments relating to divorce:

'(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought;

(b) where it was given in default of appearance, if the respondent was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable the respondent to arrange for his or her defence unless it is determined that the respondent has accepted the judgment unequivocally;

(c) if it is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is sought; or

(d) if it is irreconcilable with an earlier judgment given in another Member State or in a non-Member State between the same parties,  provided that the earlier judgment fulfils the conditions necessary for its  recognition in the Member State in which recognition is sought.'

Article 24 of Chapter III of BIIR prohibits review of the jurisdiction of the member state of origin and confirms that the test of public policy in Art 22(a) may not be applied to rules relating to jurisdiction.

Finally, Art 26 of Chapter III of BIIR confirms that a judgment may not be reviewed as to its substance.

Judgment on appeal

The court was prohibited from reviewing the jurisdiction of the member state of origin, the French court having found that it had jurisdiction in its judgment in 2015.

The court was prohibited from considering public policy (Art 24) and the substance of the decision (Art 26). In any event the wife was not raising public policy arguments.

The court found that wife had sent several letters to the French court setting out her argument that the competent jurisdiction was England. The court noted that the French court had determined the issue of jurisdiction in its judgment in 2015 and had considered the letters written by the wife in this respect.

The court also found that the French court was satisfied that the wife had been served in accordance with the French civil code and also that by 1 August 2014 the wife had been 'at the very least put on notice'. 

In respect of Art 22(b) the court acknowledged that the wife could be considered a respondent in the French proceedings as whilst she had petitioned for divorce she could be considered a respondent to the summons issued by the husband following the non conciliation hearing and resulting in the 2015 judgment. That said, the Annex II certificate accompanying the 2015 confirmed that the decision was not given in absencia. The court found that the wife knew of the husband’s summons and that she set out her position in a letter dated 9 September 2014, the court found that this was sufficient time to arrange her defence.

Furthermore, the court considered the case of Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 2 FLR 347 which confirms that for the purposes of Art 22 'appearance may include the lodging of documents at coury' (para 66).

The court therefore found that the wife had been served, that judgment was not given in default of appearance and that the wife had been given sufficient time. Consequently there was no basis for non-recognition under Art 22(b).

Any arguments for non-recognition under Arts 22(c) and (d) were dismissed by the judge on the basis that by the time that the decrees were made in England the marriage had already been dissolved in France. The court commented further that:

'[T]there are sound policy reasons why the wife should not be  allowed to rely on the later English divorce decrees as creating an  "irreconcilable" judgment when there is evidence to suggest the wife had not  given this court all the relevant information prior to obtaining the divorce  decree here. The procedure for registration within BIIR is specifically  designed to prevent conflicting judgments affecting the status within the EU.'

Conclusion

It is enshrined in BIIR that public policy tests may not apply to rules regarding jurisdiction and that a judgment may not be reviewed as to its substance. The grounds for non recognition of judgments in relation to divorces in respect of jurisdiction between EU member states are therefore limited to Art 22 (b)-(d). Mensah v Mensah deals primarily with issues raised under Art 22(b) and confirms that 'appearance' in divorce proceedings includes, as in Re D, the lodging of documents at court including in this case the lodging of letters.

In the relatively uncommon scenario of competing decrees from EU member states Mensah v Mensah provides useful guidance as to whether or not decrees should be recognised.

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