Solovyev v Solovyeva

Sergey Solovyev and Alexandra Solovyeva, who for convenience and without prejudging the issue I have to determine I shall refer to as the husband and the wife, were both born in what is now the Russian Federation. They are nationals of the Russian Federation and married there in 2002. In 2012 they were living in London. The marriage, of which there are no children, had broken down. On 29 March 2012, and again on 30 April 2012, they attended at the Consulate of the Russian Federation in London and there went through the formalities for divorce required by the law of the Russian Federation.

When they left the Consulate on the latter occasion they were each in possession of an official document in the Russian language. At the top there appears the coat of arms of the Russian Federation and, immediately below (I quote from the English translation) the words “Divorce Certificate”. The document reads in material part as follows (there are slight differences, none material, between the translations of the two documents; I set out the translation of the husband’s document, any differences in the translation of the wife’s document are shown in { … }:

“The marriage between” – details of each of the parties’ names, citizenship and nationality, date and place of birth are then set out – “has been {was} dissolved on the 30.04.2012 thirtieth day of April in the year two thousand and twelve by the spouses’ mutual consent {on the basis of mutual decision of the spouses} dated 29 March 2012

This divorce has been recorded {and the entry thereof was duly made} in the register of divorces on 30 April 2012 entry {under} no 1.

…

Place of {State} registration: Consulate of the Embassy of the Russian Federation to the United Kingdom of Great Britain and Northern Ireland

This certificate is issued to [name of husband] {name of wife}

Date of issue: 30 April 2012

Head of the civil registration office: [signature] D S Rybakov”

At the foot of the document there is a circular ink stamp “The Russian Embassy in Great Britain Consulate No 1”.

There is no doubt that, by the time they left the Consulate on 30 April 2012 in possession of these documents, the husband and the wife had been divorced in accordance with the law of the Russian Federation. The question I have to determine is whether that divorce is recognised under the law of England and Wales. In my judgment, it is not. So far as concerns both England and Wales (and indeed, as we shall see, the entire United Kingdom) they remain married.

The wife has since remarried, in the United State of America. She remains in the United Kingdom with her new husband on a spousal visa. So it would seem that the United Kingdom immigration authorities at that stage accepted the validity of the divorce. Subsequently, however, when the husband sought to marry his fiancée here, the authorities took the point that the divorce was not recognised (see a letter from the General Register Office dated 15 May 2013). She has, in consequence, had to leave the country, at least temporarily.

On 12 September 2013 (the application was not formally issued until 7 November 2013) the husband applied for a declaration of marital status. The application was served on the Attorney General in accordance with FPR 2010, rule 8.21 by letter dated 17 September 2013. On 1 October 2013 the Treasury Solicitor wrote confirming that the Attorney General did not intend to intervene.

Perhaps somewhat optimistically, on 31 October 2013 the application was put before the urgent applications judge, Roderic Wood J, in the form of a draft order seeking the necessary declaration by consent. He adjourned it for hearing before me on 13 November 2013. The husband was represented by Mr Matthew Long and the wife by Mr Christian Kenny, who made common cause in seeking to persuade me that the divorce ought to be recognised. As had previously been indicated, the Attorney General did not appear and was not represented.

By the end of the hearing I was far from persuaded that I could grant the declaration being sought. I adjourned the hearing so as to enable the parties, if they wished, to adduce further evidence. I indicated that, if they were content (as they were), I would consider any additional material without the need for a further hearing. I subsequently received a witness statement of the husband and further written submissions from Mr Long to supplement those he had put before me previously.

I now hand down judgment. In accordance with the then practice, the application was made to, and the hearing before me on 13 November 2013 took place in, the Family Division of the High Court. In accordance with articles 2 and 3(1) of The Crime and Courts Act 2013 (Family Court: Transitional and Saving Provision) Order 2014, SI 2014 No. 956, the proceedings have continued on and after 22 April 2014 in the Family Court as if they had been issued in that court. It is accordingly in the Family Court that I now sit to give judgment.

The application was supported by expert evidence as to the relevant law of the Russian Federation. The evidence was in the form of an expert’s report, dated 11 September 2013 and written in English, by Dr Ekaterina Kalashnikova. She describes herself as a Doctor of Law and a barrister, having been a member of and practising at the Moscow Bar since 2000. She deposes to being familiar with the practices of divorce in Russia and (as her report bears out) fluent in both spoken and written English. Her report is, if I may say, very clear.

So far as material for determining the only issue before me, the salient parts of Dr Kalashnikova’s report on the relevant law of the Russian Federation can be summarised as follows:

Having examined the documents in the present case, in particular the Divorce Certificate handed to the husband on 30 April 2012, Dr Kalashnikova expresses her opinion as follows:

By way of supplement to the expert evidence given by Dr Kalashnikova, and entirely consistent with it, is the husband’s evidence of what he was told when he visited the Consulate immediately after the hearing before me. Apparently no enquiries would have been made or sent by the Consulate to any official body in the Russian Federation between the dates of the parties’ two visits to the Consulate in March and April 2012. A paper and electronic record of what occurs in the Consulate is kept there. The Consulate, however, regularly sends its records to a central archive in Moscow. The husband’s mother was able to obtain from the Archive and Information Department of the Civil Registry Office Directorate of Moscow City on 19 November 2013 a ‘Certificate of Dissolution of Marriage’ showing that the documents in the present case had been received from the Consulate in London on 28 March 2013.

Against this background I turn to consider the law, that is, the law of England and Wales. The relevant provisions are to be found in Part II of the Family Law Act 1986. Section 44(1) so far as material provides that:

“ … no divorce … obtained in any part of the British Islands shall be regarded as effective in any part of the United Kingdom unless granted by a court of civil jurisdiction.”

Section 45(1)(a) so far as material provides that:

“ … the validity of a divorce … obtained in a country outside the British Islands (in this Part referred to as an overseas divorce … ) shall be recognised in the United Kingdom if, and only if, it is entitled to recognition … by virtue of sections 46 to 49 of this Act”.

Section 46 so far as material provides that:

“(1)

The validity of an overseas divorce … obtained by means of proceedings shall be recognised if –

(a)

the divorce … is effective under the law of the country in which it was obtained; and

(b)

at the relevant date either party to the marriage –

(i)

was habitually resident in the country in which the divorce … was obtained; or

(ii)

was domiciled in that country; or

(iii)

was a national of that country.

(2)

The validity of an overseas divorce … obtained otherwise than by means of proceedings shall be recognised if –

(a)

the divorce … is effective under the law of the country in which it was obtained;

(b)

at the relevant date –

(i)

each party to the marriage was domiciled in that country; or

(ii)

either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce … is recognised as valid; and

(c)

neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date.

(3)

In this section “the relevant date” means –

(a)

in the case of an overseas divorce … obtained by means of proceedings, the date of the commencement of the proceedings;

(b)

in the case of an overseas divorce … obtained otherwise than by means of proceedings, the date on which it was obtained.

…

(5)

For the purpose of this section, a party to a marriage shall be treated as domiciled in a country if he was domiciled in that country either according to the law of that country in family matters or according to the law of the part of the United Kingdom in which the question of recognition arises.”

Section 54(1) provides that:

““proceedings” means judicial or other proceedings.”

It will be seen that the crucial distinction drawn in sections 44(1) and 45(1)(a) is between divorces “obtained in” the British Islands and divorces “obtained in” a country outside the British Islands. The latter class of cases is divided into two groups: those (section 46(1)) “obtained by means of proceedings” and those (section 46(2)) “obtained otherwise than by means of proceedings”.

In the present case counsel are, correctly, agreed that the divorce, assuming it was “obtained in” the Russian Federation, was “obtained by means of proceedings”. They are also correctly agreed that the divorce is “effective” under the law of Russian Federation and that at the relevant date, whatever it was (see below), both parties to the marriage were nationals of the Russian Federation.

The question, therefore, is whether the divorce was, as both parties contend, “obtained in” the Russian Federation, in which case it is entitled to recognition in accordance with section 45(1)(a), or whether, it was “obtained in” this country, in which case, in accordance with section 44(1), it will not “be regarded as effective in any part of the United Kingdom”.

At the outset I can dispose of one matter. The fact that the events with which I am concerned took place in the London Consulate of the Russian Federation does not of itself mean that the divorce was “obtained in” the Russian Federation. The Consulate of a foreign state is, for this purpose at least, treated as being English and not foreign territory: Radwan v Radwan [1973] Fam 24 and, to the same effect, Dukali v Lamrani (Her Majesty’s Attorney General intervening) [2012] EWHC 1748 (Fam).

It is convenient before going further to consider the case law on Part II of the 1986 Act. I take the relevant cases in chronological order, starting with my own decision in Sulaiman v Juffali [2002] 1 FLR 479. The husband and wife were both nationals of and domiciled in Saudi Arabia. They were married in Saudi Arabia in accordance with Sharia law. On 23 June 2001 the husband pronounced a ‘bare’ talaq in England. It was registered with the Sharia court in Saudi Arabia 3 days later. The expert evidence, from Dr Mujahid M Al-Sawwaf and Mr Ian Edge (see paras 9-10), was that, although, as a matter of modern administrative practice in Saudi Arabia, divorcing husbands usually went to a court to register their divorce, there was no legal requirement to register a divorce in order for it to be valid and effective in the Kingdom of Saudi Arabia. Therefore, as I put it (para 11):

“So, on the fundamental point both experts are agreed. Under Islamic law as applied in the Kingdom of Saudi Arabia, the husband’s pronouncement of talaq in England on 23 June 2001 was, of itself, effective in dissolving the marriage.”

For reasons I explained (para 34) there was no real debate before me as to whether, assuming this was an ‘overseas divorce’, it was a ‘proceedings’ or a ‘non proceedings’ divorce. The question argued was whether or not the talaq was an ‘overseas divorce’ within the meaning of s 45(1). I held (paras 35-36) that the talaq quite plainly was not “obtained in a country outside the British Islands”. It was, equally plainly, “obtained in [a] part of the British Islands”. Accordingly, the talaq was not entitled to recognition and was thus ineffective to dissolve the marriage. I explained why (para 37):

“The simple fact in the light of all the expert evidence is that this talaq – I say nothing of any other kind of talaq – was ‘obtained’ in this country, it was not ‘obtained’ in Saudi Arabia. It was ‘obtained’ in this country because, as explained by the experts, the effect of this talaq, pronounced by the husband in this country on 23 June 2001, was, as Dr Al-Sawwaf put it, to dissolve the marriage ‘as soon as’ the talaq was pronounced. The validity of this talaq was ‘not dependent in any way upon … the participation or authorisation of judicial authorities’. The point is really not capable of much elaboration. In my judgment such a talaq is ‘obtained’ in this country, it is not obtained anywhere else.”

I added (para 45):

“Accordingly, Mr Mostyn succeeds in his primary contention that this talaq, having been obtained in this country other than through a court, falls foul of s 44(1) of the Family Law Act 1986. I should add that in any event, and even if the involvement of the Sharia Court in some way was part and parcel of the process (which, in my judgment, given the expert evidence, it was not), the talaq would still plainly be invalid as a transnational divorce”.

I referred in that connection to R v Secretary of State for Home Department ex parte Fatima [1986] AC 527 and Berkovits v Grinberg (Attorney-General Intervening) [1995] Fam 142.

The next case is H v H (The Queen's Proctor Intervening) (Validity of Japanese Divorce) [2006] EWHC 2989 (Fam), [2007] 1 FLR 1318, a decision of Mr Stephen Wildblood QC sitting as a deputy High Court judge. One of the questions for decision was whether a Japanese ‘kyogi rikon’ divorce (divorce by agreement) was, within the meaning of section 46(1) “a divorce obtained by means of proceedings” in Japan. The essential pre-requisites for such a divorce were the signature by both parties of a form and the registration of the divorce in accordance with the provisions of Japanese law. Both those steps had, in the instant case, taken place in Japan. The expert evidence was to the effect, as summarised by the judge (para 6), that:

“Without registration in accordance with the Japanese law there is no divorce … the divorce does not take effect as a result of the parties’ agreement alone; for the divorce to be effective there must be registration in the manner prescribed by Japanese law. Registration is formative of (and essential to) the divorce; it is not simply probative of the divorce.”

The judge held that this was a ‘proceedings’ divorce, within the meaning of sections 46(1) and 54(1), not a ‘non-proceedings’ divorce within the meaning of section 46(2). So far as material for present purposes, his reasoning was as follows (paras 96-97):

“96

… the involvement of the state in Japan is not ‘simply probative’. Nor can the involvement of the state of Japan be regarded as mere ‘surplusage’. The state does not simply prove the divorce that the parties have achieved by their prior act of consent. The consent of itself creates nothing. The registration of the divorce by the state is fundamental to its effect; no registration, no divorce. The fact that the state employee who effects the registration plays no more than an administrative role does not make the procedure as a whole purely administrative … the state regulates the procedure for the kyogi rikon and the manner of its registration and certification …

[97] Although there are elements of informality about it, the kyogi rikon has certain specific formalities. There must be consent of both parties. It does not take effect until the state machinery of registration has been completed. There are specific rules and procedures laid down by the state governing its making.”

There is nothing inconsistent in any of that with what I had said in Sulaiman v Juffali.

The third case is H v S (Recognition of Overseas Divorce) [2012] 2 FLR 157, a decision of His Honour Judge Horowitz QC sitting as a Judge of the Family Division. The husband pronounced talaq in Jeddah and presented a deed of confirmation before the local Sharia court, subsequently registered in accordance with the mechanism established in Saudi Arabia by Royal Decree. The question was whether this was a ‘proceedings’ divorce within the meaning of section 46(1). Judge Horowitz held that it was. He did so on the basis of expert evidence which, differing from the expert evidence before me in Sulaiman v Juffali, indicated that registration in accordance with the Royal Decree was compulsory under criminal penalty. He expressed his reasoning as follows (para 61):

“The combination of Talaq, deed and fulfilment of the registration requirement is, it seems to me, inescapably an intervention and act of State or official agency within proceedings with a specific function to fulfil … I add that insofar as Mr Wildblood QC in saying at para [96] in H v H (Queen’s Proctor Intervening) (Validity of Japanese Divorce) no registration and no divorce was not simply a description of the kyogi rikon but an essential element of proceedings in every s 46(1) case he went further than was necessary or warranted by authority.”

With all respect to Judge Horowitz, I am not sure that his characterisation of what the deputy judge had been saying in H v H was entirely accurate. I agree that the judge was not, of course, saying that “registration” was an essential element of “proceedings” in every section 46(1) case, but equally his reference to registration was not merely descriptive of the kyogi rikon. What the deputy judge was surely doing, and, if I may respectfully say so, correctly doing, was to identify the particular aspect of the relevant foreign system which was crucial to the characterisation of what had happened in the case before him as “proceedings” within the meaning of section 46(1). The judge’s handy aphorism, “no registration, no divorce”, was not simply a description of the kyogi rikon. It was an essential element in demonstrating that there had indeed been “proceedings” in that particular case.

Judge Horowitz had been referred to Sulaiman v Juffali. Seemingly referring to the passages in my judgment I have already set out, he said (para 62):

“Sulaiman v Juffali is not binding on me and the observations of Munby J are not central to his determination so that they can be described as obiter dictum. Further, Munby J proceeded on expert evidence not that before me which cannot simply be ported into my decision.”

With the second sentence of that I have absolutely no quarrel. The evidence before me on the point was indeed materially different. I would not, however, describe my observations on the point as obiter dictum. They were part of my reasoning. What needs to be borne in mind, however, is that the point before me was not the point before Judge Horowitz. In Sulaiman v Juffali the question was whether the divorce, whether it was a ‘proceedings’ or a ‘non-proceedings’ divorce, had been “obtained in” a foreign country, given that the talaq had been pronounced in this country. In both H v H and H v S, where all the steps said to constitute the divorce had undoubtedly occurred in the foreign country, the question was whether those steps amounted to “proceedings” within the meaning of sections 46(1) and 54(1).

I was also referred to H v H (Talaq Divorce) [2007] EWHC 2945, [2008] 2 FLR 857, and NP v KRP [2013] EWHC 694 (Fam). Neither, however, throws any light on the issue before me.

I agree with Mr Long and Mr Kenny that, applying the learning in H v H and H v S, the divorce in the present case was obtained “by means of proceedings” as that phrase is used in section 46(1). I am therefore here concerned with a ‘proceedings’, not a ‘non-proceedings’ divorce. There is also no doubt that the divorce was “obtained” in accordance with the law and process of the Russian Federation. The critical question however, as I have said, is where it was “obtained.” Was it “obtained in” the Russian Federation, in which case, as Mr Long and Mr Kenny submit, it is entitled to recognition in accordance with section 45(1)(a)? Or was it “obtained in” this country?

In my judgment there is only one possible answer to this question: the divorce was obtained at the Consulate in London on 30 April 2012 – Dr Kalashnikova’s evidence is quite clear as to that – and was thus obtained in this country.

Mr Long and Mr Kenny seek to avoid this by submitting that the divorce was “obtained” in what Mr Long calls “Russia’s centralised bureaucratic system”, the Consulate merely providing a certificate to record this and acting as “the administrative conduit” by which registration was received. The divorce, he says, was obtained from “the state of Russia”, if not on 30 April 2012 then on 28 March 2013 when the documents were received in Moscow. They seek to distinguish Sulaiman v Juffali on various grounds having to do with the very different divorce process involved in that case compared with the process in the present case. Despite their best endeavours, however, none of this, correct though it may be, takes them anywhere.

Of course, the divorce was obtained from the Russian Federation by an administrative process of the Russian bureaucracy. But that is not the point. In the final analysis the matter comes down to two questions: When was the divorce obtained? Where was it obtained? In the light of Dr Kalashnikova’s evidence there can be only one answer to the first question: the divorce was obtained on 30 April 2012 when the Divorce Certificate was handed to the parties, not on 28 March 2013 when the documents were transmitted to Moscow. Given this, the answer to the second question – a matter to be determined ultimately by English law – is equally clear: given the rule in Radwan v Radwan [1973] Fam 24, the events of 30 April 2012 which culminated in the legal dissolution of the parties’ marriage that day, all took place in London, albeit in the Russian Consulate, and not in Russia. It follows that the divorce was “obtained” in London and therefore cannot be recognised.

Mr Long and Mr Kenny also rely upon the interests of comity and international co-operation and point to the hardship which, in their different ways, both the husband and the wife will suffer if the divorce is not recognised. I acknowledge all that, but there is no room for any discretion. If, in a case such as this, a divorce does not fall within section 46 it cannot be recognised – see the mandatory language of section 44(1) and the words “if, and only if” in section 45(1)(a).

It follows that this application must be dismissed. So far as concerns the United Kingdom, the divorce the parties obtained on 30 April 2012 cannot be recognised and is therefore not regarded as effective.