Hermens v Hermens & Anor

This is an application by the Queen’s Proctor to dismiss a divorce petition and set aside a decree of divorce obtained on the petition of Tom Theo Hermens in proceedings against his wife, Elisaveta Nikolaeva Hermens. On 6^th September 2017, I gave the Queen’s Proctor permission to intervene in the petition with case management directions leading to a full hearing which has taken place today.

At the hearing, the Queen’s Proctor has been represented by Mr Murray of counsel. The petitioner, who opposes the Queen’s Proctor’s application, has been represented by Mr O’Brien. The respondent, who has filed documents in the course of this application, has not attended nor has been represented today.

The background to the case, as set out in a chronology prepared by Mr Murray, is as follows. The petitioner is a Dutch national and the respondent a Bulgarian national. The petitioner has, he asserts, been habitually resident in this jurisdiction at all material times. The parties met in Greece in about 2002 and began living together in 2004. It seems that they lived at the petitioner’s property in ancient Epidaurus in Greece and also at other times in a workshop used or occupied by the respondent in Greece. They also spent time together living in a property in Bulgaria which the respondent had inherited.

The parties were married on 3^rd March 2007 at the Chiltern Hills District Registry Office in Buckinghamshire. The marriage certificate records that the petitioner’s address at the time of marriage was “Suite 107, 78 Marylebone High Street, London, W1Y 5AP”. The Queen’s Proctor avers that this was, in fact, a PO Box address run by a company called Mailboxes Etc. and was not a residential address at the time of the marriage.

On 10^th February 2011, the petitioner filed a petition for divorce in the Weston-Super-Mare County Court. That petition contains the following provisions:

“1.

On 3^rd March 2007, the petitioner, Ton Theo Hermens, was lawfully married to Elisaveta Nikolaeva Hermens (hereafter called ‘the respondent’) at the Registry Office in the District of Chilterns Hills in the County of Buckinghamshire …

“2.

The petitioner and respondent last lived together as husband and wife at Suite 102, 19-21 Crawford Street, London, W1H 1PJ.

“3.

The Court has jurisdiction under Article 3.1 of Council Regulation [Brussels IIa] on the following grounds: the petitioner and respondent are both habitually resident in England and Wales.

“4.

The petitioner is, by occupation, retired and resides at Suite 102, 19-21 Crawford Street, London, W1H 1PJ. The respondent is, by occupation, unemployed and resides at Suite 102, 19-21 Crawford Street, London, W1H 1PJ.”

The petitioner continues later, as follows:

“10.

The said marriage has broken down irretrievably.

“11.

The respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent.”

There then followed particulars of behaviour on which the petitioner relied. It is unnecessary, in order to deal with this application, for me to go into those particulars at all.

Finally, the petition concludes with the names and addresses of the persons to be served with the petition. That provision reads as follows:

“Respondent: Elisaveta Nikolaeva Hermes, Suite 102, 19-21 Crawford Street, London, W1H 1PJ. The petitioner’s address for service: Tom Theo Hermens, care of Divorce Online, Alexander House, 19 Fleming Way, Swindon, SN9 2NG”.

Beneath those provisions, there is a signature that is said to be the signature of the petitioner and a date, 10^th February 2011.

The address given several times in the petition, Suite 102, 19-21 Crawford Street, London, W1H 1PJ, is, as is now accepted, an address which contained a mailbox, which was paid for and controlled by the petitioner. It does not contain any residential accommodation at all of any nature and certainly not a suite. It was simply a mailbox address. So much is accepted by the petitioner through Mr O’Brien before me today. Indeed, it has been accepted frankly by the petitioner at all points since the Queen’s Proctor’s intervention in these proceedings.

Notice of the issue of the petition was sent to the petitioner at the Divorce Online address on 17^th February 2011. That notice recorded that a copy of the petition had been sent to the respondent on the same date to the “Suite 102” address which had been recorded as the respondent’s address for service on the petitioner, as described above.

In passing, I record that information provided recently by the respondent in the course of these proceedings has revealed that two days’ later, on 19^th February 2011, the petitioner signed four copies of a codicil to his will, referring to the respondent, and giving her address as being the address of the petitioner in ancient Epidaurus, but the address given for the petitioner as the “Suite 102” address.

On 18^th May 2011, the petitioner signed an application for deemed service of the petition. He relied on an affidavit of the same date in which he stated:

“that on 11^th March 2011, I was with the respondent, Elisaveta Nikolaeva Hermens, when she opened the divorce papers. Upon reading the divorce petition, she commented, ‘So you want to divorce me.’ Later she told me that it was ‘important’ that she ‘go to Bulgaria quickly’ and, when I refused to give her money, said, ‘I will never sign any divorce papers’.”

On the notice of application for deemed service, the petitioner again gives his address as being the “Suite 102” address beneath his signature.

On 31^st May 2011, District Judge Corrigan, sitting at the Weston-Super-Mare County Court, made an order that the petition be deemed served on the respondent and further ordered that the petition may proceed, notwithstanding that the respondent had not signed and returned the acknowledgement of service to the court office.

On 13^th July 2011, the petitioner applied for directions for the hearing of the undefended divorce in the special procedures list. In support of his petition, he then filed an affidavit in the standard form in which he averred, inter alia, that all statements in the petition and the particulars were true. The affidavit concluded with the formal avowal that the answers to all the questions were true and a further statement that he relied on the order for deemed service.

On 21^st July 2011, District Judge Corrigan certified that the petitioner was entitled to a decree of divorce on the grounds of unreasonable behaviour and, on 10^th August 2011, the district judge duly granted a decree nisi for divorce on the basis of the respondent’s unreasonable behaviour.

On 22^nd September 2011, the petitioner applied for the decree to be made absolute. In the notice of application, he again gave his address as being the “Suite 102” address. On 22^nd September 2011, the decree of divorce was made absolute.

It seems from the evidence that has been provided for this application, however, that the parties had not separated and were, in fact, living together and continued to do so until 2015. In documents produced for this application, the respondent has asserted that it was in January 2015 that she and the petitioner separated and she has produced a substantial body of documents demonstrating that until that date their relationship was continuing. In view of the way in which I consider that this application can be dealt with, it is unnecessary for me to consider that evidence in any detail. The respondent asserts in documents she has supplied to the Queen’s Proctor that she was not aware that she had been divorced by the petitioner until after the break up of their relationship in 2015. Indeed, she asserts that she did not receive the decree nisi and decree absolute until March 2016.

In May 2016, the respondent contacted the Queen’s Proctor and gave a witness statement in March 2017 in which she drew attention to the fact that the assertion that she and the respondent had last lived together as husband and wife at the “Suite 102” address in the petition was untrue. She pointed out that the address is not a residential address, but, rather, an address of Mailboxes Etc. She further averred that this was an address used by the petitioner for the service for delivery of documents and asserted that, on a regular basis, he received mail at his address in Epidaurus in envelopes from Mailboxes Etc. She asserted, as is indeed accepted, that no accommodation which matches the description of “Suite 102” exists in the building and that no floor, apartment or any part of that property is owned or rented by either the petitioner or her.

In her statement of March 2017, the respondent further asserted that the petitioner’s conduct had been motivated by financial considerations. Plainly, there is a financial dispute between the parties, but, again, in view of the way in which I consider this application can fairly be dealt with, it is unnecessary for me to go into those matters.

On 26^th June 2017, the Queen’s Proctor filed a plea in the proceedings seeking that the certificate and the decrees be set aside on the basis that the decrees had been procured by fraud. That application came before me initially, as I have said, on 6^th September 2017. On that occasion, as I have said, I gave the Queen’s Proctor permission to intervene in the petition and directions for the future of the application. I gave permission to the Queen’s Proctor to effect substituted service on the petitioner of all the documents on which he wished or may wish to rely in the proceedings. I gave directions for the filing and service of his plea and the respondent’s witness statement. I directed the petitioner to file any answer and any evidence in response by Friday, 13^th October, and further provided that, in the event that the petitioner filed such an answer, the Queen’s Proctor would be entitled, if so advised, to file a reply to the answer and further evidence, including a statement from the respondent, if so advised. I directed that the matter be listed for a full hearing today, 15^th December 2017.

The petitioner duly filed an answer in which he recorded how he had instructed Divorce Online to assist him with a divorce and that they had drafted all the relevant divorce papers. He stated that he recalled handing the divorce petition to the respondent. He stated that he had sent her the decrees nisi and absolute upon receipt from the court.

As to the question of his address, he said as follows:

“As I am often living between my Greece home, my caravan in the UK and my daughter’s home in London, I require a UK address to receive my post. Thereby I have taken the services of a mail forwarding agency who have been given the address Suite 102, 19-21 Crawford Street, London, W1H 1PJ for all my post to be sent. All post received at this address are forwarded to me by the mail forwarding agency, Mailboxes Etc., to Greece or collected in person by myself or at times by the respondent. During our relationship, the respondent would use my UK address in order to send out letters …”

The petitioner proceeds to describe documents which he says that the respondent has received via that address, including documents relating to her immigration status.

As to the Queen’s Proctor’s plea, the petitioner accepted that he had used the “Suite 102” address in the way described in the petition. He further accepted that he had referred to the “Suite 102” address as the address where he and the respondent had last lived together as husband and wife. He explained that, as he always lived between his caravan in the UK, his home in Greece and his daughter’s property in London, he needed to ensure to receive all his post and that was why he used the mailbox address for correspondence. He further stated that the respondent continued to use his mailbox address both during the marriage and, as I understand it, after the divorce. He continued:

“When I initially told the respondent I will apply for divorce, she warned me that she would never sign the papers to allow me to obtain a divorce. Therefore, I felt the safest option was to put down my address and ensure that I handed the papers to her upon receipt from the court. That way I could be sure that she received the papers.”

He continued:

“At the start of the divorce proceedings, I handed the respondent the divorce petition. Hereafter we did not speak of the divorce. I assumed that she may be in denial, but, given that she has been aggressive towards me and has an alcohol issue, I did not want things to become acrimonious. I did not detest the respondent but her behaviour followed excessive alcohol consumption. She clearly wanted to continue to use my address at Suite 102 to receive her correspondence and I did not prevent her from doing so as I did not feel it necessary.”

The petitioner proceeded to deal with other matters raised by the Queen’s Proctor which, in view of the way I consider this application can be dealt with today, it is unnecessary to cite in any detail. Suffice it to say that the petitioner concludes his answer by asserting that he believes that the respondent is simply seeking to obtain an opportunity to acquire further financial support from him and that has motivated her in her conduct in referring the matter to the Queen’s Proctor in the way described above. He argues that, on the basis that the respondent was made aware of the divorce petition at the time and that he had subsequently provided her with the petition and the decrees, the Court should dismiss this application today.

The law in this field has been considered recently by the President of the Family Division, Sir James Munby in the case of Rapisarda v. Colladon [2014] EWFC 35. That was the notorious case concerning over 180 divorce petitions involving parties from Italy. It is unnecessary to set out the facts of that case in any detail. Suffice it to say that the President in that judgment sets out with full particularity the history of the law in this area and reaches the following conclusions at para.29:

“(1)

Perjury without more does not suffice to make a decree absolute void on the ground of fraud.

(2)

Perjury which goes only to jurisdiction to grant a decree and not to jurisdiction to entertain the petition, likewise does not without more suffice to make a decree absolute void on the ground of fraud.

(3)

A decree, whether nisi or absolute, will be void on the ground of fraud if the court has been materially deceived, by perjury, forgery or otherwise, into accepting that it has jurisdiction to entertain the petition.

(4)

A decree, whether nisi or absolute, may, depending on the circumstances, be void on the ground of fraud if there has been serious procedural irregularity, for example, if the petitioner has concealed the proceedings from the respondent.”

On that occasion, the President observed that it was the third of those propositions which was determinative of the case.

As already stated, the 180 or so petitions involved parties from Italy, but in only one of those cases, as I understand it, was the matter contested and that was the specific case of Rapisarda v. Colladon. In that case, the parties opposed the Queen’s Proctor’s application on the grounds, inter alia, that, although neither of them had ever lived at the false address given in the petition (which was the same false address as given in the majority of the 180+ petitions), the respondent had, as a matter of fact, been habitually resident in England at the time that the petition was filed so that the courts of England and Wales would, as a matter of law, have had jurisdiction under Article 3 of Brussels IIa when the petition was issued. To that, the Queen’s Proctor responded that his plea was not advanced solely on a jurisdictional basis, but, rather, on the grounds that the decrees had been granted as a result of a serious deception of the Court, namely, by the provision of the false address. In other words, he asserted that, even if the respondent had, in fact, been habitually resident within the jurisdiction, within the meaning of the relevant legislation, namely, s.5 of the Domicile and Matrimonial Proceedings Act 1973 (as amended), the divorce proceedings were “still tainted by deception of the Court” and for that reason the Queen Proctor maintained his claim.

The President considered the evidence about habitual residence and continued at paragraphs 94 to 97 of his judgment in the following terms:

“ 94. I have to say that I am sceptical as to whether, even on his own evidence, the respondent can establish that he was ever habitually resident in this country. But even assuming that he can, I am persuaded by Mr Murray [counsel for the Queen’s Proctor on that occasion, as he is today] that it cannot avail either the respondent or the petitioner. The fact remains that in this case, as in all the others, the English court was deceived into believing that, in this case, the respondent lived at Flat 201, and the decree nisi and decree absolute were procured by the use of a purported affidavit which, like the others, was in fact and in law a forgery. As Mr Murray succinctly puts it, the fact is that the false address was presented to the court. On that ground, as Mr Murray submits, the Queen's Proctor is entitled to the same relief in Rapisarda v Colladon AL11D00099 as in the other cases.

“95.

Quite apart from that, there are other difficulties in Ms Villarosa's way [Miss Villarosa was counsel acting for both parties in the Rapisarda case]. The use of the wrong address was not, as Ms Villarosa would have it, a ‘mistake’; it was deliberate. Moreover, even if I could in some way cure this defect in the petition it is far from clear that this could, without more ado, retrospectively cure the process culminating in the decree nisi and the decree absolute. And in any event, Leake v Goldsmith [2009] EWHC 988 (Fam), [2009] 2 FLR 684, a very different case, does not assist Ms Villarosa, nor do two other cases to which reference was made, S v S (Rescission of Decree Nisi: Pension Sharing Provision) [2002] IDS Pensions Cases 219 and Kearly v Kearly [2009] EWHC 1876 (Fam).

“96.

Ms Villarosa submits that the petitioner and the respondent were innocent parties, who did not collude or in any way take part in whatever fraud may have been committed by [the fraudsters responsible for orchestrating the fraud in the 180 cases]. I am prepared to assume in their favour that they were taken advantage of by others who were intent on making money dishonestly at their expense. But their plea of innocence will not wash. On the petitioner's own account, she must have realised that there was something distinctly odd about the affidavit she was being asked to sign. So far as the respondent is concerned his (admitted) signature to the acknowledgment of service faces him with a dilemma from which he cannot escape. If, as he says, he signed the form in blank, then he must take the consequences. If, on the other hand, it had been completed when he signed it, how can he explain the fact that his address is shown immediately below his signature as Flat 201 and not, as he had notified [the fraudster] by email on 1 February 2011, his true address in Bromley?

“97.

Accordingly, in this case as in the others, the decree nisi and the decree absolute must be set aside as being void for fraud, and the petition must be dismissed.”

Mr Murray proceeded to rely on the recent case of Grasso v. Naik and Bhatoo and twenty other petitions [2017] EWHC 2789 (Fam) in which the President reiterated his conclusion in the Rapisarda case. In each of the cases before him in the Grasso case, where a similar fraud had been perpetrated as that perpetrated in the Rapisarda case, he concluded:

“that in each case the underlying proceedings were tainted by deception in relation to the address of either the petitioner or the respondent, and the decrees, where decrees had been granted, were obtained by deception.”

Before me today, Mr Murray submits that this case is, if not completely on all fours with the cases of Rapisarda and Grasso, nonetheless very similar, in that the proceedings were tainted by deception in relation to the address of both the petitioner and the respondent.

In his plea, the Queen’s Proctor also seeks to rely on the respondent’s assertions that she was not served with the petition or the decrees and knew nothing about the divorce proceedings until 2015. I have taken the view that it is unnecessary for me to consider that aspect of the Queen’s Proctor’s plea and, in any event, it seems to me that it would be difficult for this Court to reach a fair conclusion on those matters without the attendance of the respondent and, as I set out above, she has not attended today.

In response, Mr O’Brien, on behalf of the petitioner, accepts that the petition contains false information in paragraphs.2, 3 and 4, namely, the assertion that the parties last lived together as husband and wife at the “Suite 102” address, the assertion that the respondent was habitually resident in England and Wales and the assertion that both parties resided at the “Suite 102” address at the date of the petition. But Mr O’Brien asserts that the Queen’s Proctor plea should not be allowed to succeed in circumstances where, on the petitioner’s case, he was, as a matter of fact, habitually resident in England and Wales at the date the petition was filed and in circumstances where both parties accept that the marriage is over and do not wish to live together. Mr O’Brien asserts that, in those circumstances, public policy considerations should not require this Court to set aside either the decree nisi or the decree absolute or dismiss the petition. Given the marriage has broken down and at the time of the petition the petitioner was resident in this country, he submits that this is, in effect, more of a technical objection.

Furthermore, he draws this distinction between this case, on the one hand, and Rapisarda and Grasso, on the other. Whereas, in those cases, the addresses given on the petition had no direct connection at all with any of the parties - they were simply used as false addresses via which information concerning the proceedings could be transmitted to the fraudsters in Italy - in this case the address “Suite 102” is one which was regularly used by the petitioner not as a residential address but as a postal address.

Accordingly, in those circumstances, Mr O’Brien submits that there is a material distinction between the facts of this case and the two decisions the President cited above. In addition, however, Mr O’Brien does not shrink from inviting this Court to conclude that the President’s interpretation of the law was erroneous, insofar as he concluded that the giving of a false address in the divorce petition was sufficient to amount to a material deception which justified the setting aside of the decrees in circumstances where the petitioner was, as a matter of fact, habitually resident in this jurisdiction. In other words, Mr O’Brien submits that, contrary to the decision of the President, it is not either necessary or appropriate, as a matter of law or public policy, for decrees to be set aside on the basis of a false address when, as a matter of fact, the petitioner would have been entitled to a divorce on the basis that he was, in fact, habitually resident in this jurisdiction.

In response, Mr Murray submits that the material deception practised on this occasion by the petitioner was in no real sense distinguishable from that practised by the parties in the Italian cases, in the Rapisarda case or in the Grasso case. Furthermore, he submits that the fact that there is a serious material deception in paragraphs 2, 3 and 4 of the petition ought, as a matter of public policy, to be recognised by this Court and lead to a conclusion that the decree should be set aside.

In my judgment, the analysis of law by the President cannot seriously be challenged. A divorce petition is a document which has the effect of changing the status of individuals permanently if it leads in due course to a decree of divorce and it is, as a matter of public policy, essential that the particulars in that document are true. That is why the Court requires the filing of affidavits attesting to the truth of what is in the petition.

In my judgment, the giving of a false address in this case was a material deception and a material deception repeated by the petitioner in not only asserting the address at which he and the respondent last lived together, but also as the address at which he and the respondent were then living at the date of the petition. In my judgment, it matters not that the petitioner may have been entitled to a decree on the grounds that he was, in fact, habitually resident in this jurisdiction. He so asserts and I am in no position to judge whether that is true or not. Like the President, I proceed on the basis, for the purposes of this analysis, that he is correct, but, like the President, I conclude that, even if he is right in saying that he was habitually resident in this jurisdiction so as to give the Court jurisdiction to entertain the petition for divorce, that does not avail him in his case. The fact is, in this case, as in the Rapisarda case and in the Grasso case, the Court was deceived into believing that in this case the respondent lived at Suite 102 when, in fact, that was simply a mailbox address. As a result, the decree nisi and, in due course, the decree absolute were granted by District Judge Corrigan in Weston-Super-Mare and procured by the use of an affidavit which, like the affidavit in the Rapisarda case, was, in fact and law, a forgery. A false address was put to the Court and a decree granted on that basis. It was a deliberate act.

In my judgment, there are strong public policy rules for this Court concluding that, in those circumstances, the decrees must be set aside and I so order.

Mr O’Brien, in conclusion, invites the Court to say that, even if I decide the decrees must be set aside, there is no reason to dismiss the petition. He invites the Court, in effect, to leave the petition alive so that the petitioner can, as appropriate, make necessary amendments.

In my opinion, the right course is to dismiss the petition. It is so tainted by material irregularity that it would be a travesty of public policy to allow it to proceed in the way in which Mr O’Brien proposes. There is nothing to prevent his client filing a fresh petition in proper form and seeking a divorce on that basis. If that happens, then it may be that the parties litigate the financial issues that are plainly underlying these events, but that is a matter for them. It is not a matter which I consider necessary to consider further at this hearing today.

That is my judgment.