Family Law Hub

J v J (Non-Recognition of Overseas Divorce) [2021] EWFC 43

Peel J rejected an application by W for non-recognition of a Chinese divorce.

  • Background

    W and H are 34 and 45 respectively. W is of Polish origin and H is Chinese. There were no children of the marriage.

    The parties met in 2016 and married in 2017. The parties disagreed on where they lived during the marriage. W held that they lived in England but travelled internationally for business, and H was adamant that they lived in China. Peel J took the view that W's case was more compelling on this point and accepted that the parties had their base in this country. That said, W told the judge that China was one of the countries they travelled to for work, and that she was reasonably familiar with it.

    Whilst W was working on her own hi-tech start up when they met, it was her case that the parties agreed that she would join H's business as Chief Scientific Officer. According to W, she played a vital role in the success of the business.

    H's business had operations all over the world and, as a result, its structure was difficult to establish. However, there was no company or asset of any real value in this jurisdiction.

    The parties separated in 2019, meaning that the cohabitation and marriage lasted just over two years. W was dismissed from her role as Chief Scientific Officer because, she claimed, she directly challenged H about an alleged insolvency fraud. W brought a successful Employment Tribunal Claim in this jurisdiction and secured damages of £100,000.

    W remained supported, "apparently generously", by H until October 2019 when he abruptly closed the parties' joint account which held £1.4m. H claimed to have no recollection of this [18].

    Since then, H provided no financial support to W, who had not worked since her dismissal. W had debts of c.£600,000, comprising credit card liabilities, legal fees, and rent arrears.


    The matter was listed before Peel J on 8 February 2021 to consider a wide range of applications made by W, including for:

    • Her English divorce to be progressed;
    • Maintenance Pending Suit and a Legal Services Order;
    • Freezing injunctions against various companies and bank accounts owned by H;
    • Joinder of overseas companies and an associated third-party individual;
    • Third party disclosure.

    However, it became clear that W's applications largely fell away at that stage because of a Chinese divorce obtained by H on 14 December 2020 which preceded any decree here. As W had not obtained a decree of divorce in this jurisdiction, despite having issued a petition on 30 May 2019 (almost two years previously), her divorce suit fell away. As a result, her application for financial remedy proceedings fell away too.

    Peel J asked W if she intended to apply for a refusal of recognition of the Chinese divorce under s51 of the Family Law Act 1986 ("the FLA 1986"). When W said yes, the judge recorded that she had applied in the face of the court and dispensed with service.

    W's non-recognition application was adjourned along with all of her other applications on the basis that they could be resurrected in the event that Peel J refused to recognise the Chinese divorce.

    H's Wealth

    H's Form E was "unacceptably bereft of detail" and left the reader "not much the wiser", but the judge was satisfied that he was a man of considerable wealth, running into many millions of pounds [20]. Peel J was influenced, in part, by a valuation report produced by W estimating the value of the group to be £42m, and the standard of living W claimed they had enjoyed, which was strongly indicative of large-scale wealth.

    H's threats to W

    W's case centred on her claim that H was intent on ensuring that she was unable to obtain any, "or any reasonable", financial provision [22]. W pointed to his closure of the joint account; his disregard for his obligation to undertake full and frank disclosure; and to his disposal of shares from one of his companies at an undervalue at the time of separation.

    W said H had told her she would "'get nothing'" and that he would delay proceedings until she ran out of money [22]. W produced voice recordings to this effect.

    W's divorce suit in England

    W issued her divorce petition on 30 May 2019 based on unreasonable behaviour. However, H was no longer living in the UK and attempted to evade service upon him of the petition in China (as he subsequently did when W issued her Form A).

    W made an application for service to be effected by email and various orders were made by the court in Bury St Edmunds.

    On 20 August 2020 the court eventually confirmed deemed service. They recorded that H had not filed an Acknowledgment of Service and authorised W to apply for directions for trial as an undefended cause. W applied by Forms D80 and D84 on 21 September 2020 for the divorce to proceed through the undefended list.

    Peel J held that it was unfortunate that the court in Bury St Edmunds had, of its own motion, transferred the suit to the Central Family Court despite being aware that the financial remedy proceedings were taking place in the Central Family Court. It appeared that the file had then been transferred to the High Court because of the financial proceedings.

    No further steps were taken by the court on W's undefended divorce application, despite chasing attempts by W.

    Had the suit proceeded expeditiously, and there was no reason obvious to peel J why it did not, W would likely have obtained a decree in this jurisdiction before H's Chinese decree.

    During oral discussions with Peel J, H admitted that he had seen and been aware of the divorce documents since early 2020.

    H's Chinese divorce proceedings

    Although there were difficulties establishing the precise facts, Peel J found it "tolerably clear" that the position was as follows (at [27]):

    • H filed divorce proceedings in the Chinese court on 16 October 2019 which were "accepted" (Peel J understood this to be equivalent to "issued") on 7 November. According to Article 22 of the Civil Procedure Law of the People's Republic of China, H was entitled to bring the suit there because of his Chinese domicile. When asked, W did not know what "domicile" was and so Peel J found that she was unable to refute the basis of jurisdiction relied upon by H.
    • There was no evidence that the suit was brought to W's attention at this stage. In fact, H's lawyers alleged in contemporaneous documents that they did not have her contact details.
    • H had legal advice at all material times during the Chinese divorce process, whilst W never obtained legal advice or representation.
    • On 22 April 2020 the court determined that W should be served by public announcement, in accordance with Chinese divorce procedure.
    • W was copied into an email sent on 10 April 2020 by H's lawyers which said that the Chinese court had "accepted" the divorce suit and that the next hearing was on 22 April 2020. W's email address was correctly filled in, but she told Peel J that she had not seen it until 20 April 2020. Peel J was "willing to give her the benefit of the doubt on this" as she instantly contacted H's lawyers. This meant that W was aware of the proceedings and the next court date from 20 April 2020.
    • W contacted Mr Z, a friend and business contact who lives and works in China, to see If he could assist her. He contacted the judge of the Chinese court who "swiftly ended the telephone call". The 22 April 2020 hearing took place without W in attendance. Mr Z attempted to attend as what W described as a McKenzie Friend, but he was not permitted to appear.
    • On 15 May 2020 a chronology of the Chinese suit was sent to W's email address and lodged at the Central Family Court in London by H's Chinese lawyers. W claimed she had not seen it. Peel J found this "surprising" but was willing to accept it.
    • On 12 June 2020, W obtained a report from a Chinese lawyer for the purpose of the English suit. In essence, its conclusion was:
    • In September 2020, according to W and Mr Z's evidence, W wrote to the judge of the Chinese court criticising the procedure and asking for Mr Z to be allowed to appear as her McKinsey Friend. This was the only written communication W claimed to have had with the Chinese courts. However, permission was repeatedly refused on the basis that he was not a lawyer, nor did he have Power of Attorney.
    • On 14 December 2020 the Chinese court gave judgment and determined that "The plaintiff…is permitted to divorce from the defendant". The judgment was publicised by a People's Court announcement in the People's Court Daily on 27 December 2020.
    • W did not appeal.

    Peel J held that "it [was] not in doubt that this constituted the granting of the divorce".

    Non-recognition: Law

    In line with s51(3) of the FLA 1986, the validity of an overseas divorce may be refused if it was obtained;


    (i) Without such steps having been taken for giving notice of the proceedings to a party to the marriage as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken; or

    (ii) without a party to the marriage having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as, having regard to those matters, he should reasonably have been given.

    Or, if it would be manifestly contrary to public policy to recognise it (s51(3)(c)).

    Peel J examined the case law on the matter and was in agreement that the courts should be very slow to refuse recognition of the decision and order of a foreign court where it has acted independently and applied substantive law. Similarly, non-recognition on the grounds of public policy should be "exercised sparingly" (as per Thorpe J (as he then was) in Eroglu v Eroglu [1994] 2 FLR 287.

    Non-Recognition: Outcome

    Whilst W was not aware of the divorce proceedings when they were issued, and Peel J had no reason to doubt that she was not aware of the first court hearing, there could be no doubt that she knew of the existence of Chinese divorce proceedings from 20 April 2020; eight months before the decree on 14 December 2020.

    Moreover, it seemed to Peel J that H had taken steps to notify W. He found that H and his lawyers were entitled to use W's email address and that they had no other realistic means on contacting her. He also found that, having been made aware of the process, W had the opportunity to participate.

    W could have attended the hearings in person, with a friend, or she could have hired a lawyer. Although there would have been a cost, she was able to pay for an expert Chinese law report in June 2020, and Chinese employment lawyers during 2019/2020. Similarly, she could have executed a Power of Attorney to authorise attendance on her part.

    Instead, W wrote to the court only once in eight months. And, after repeatedly being told that Mr Z was unable to appear before the court, she continued to rely on him. This "may have been unwise" [37].

    Peel J noted that, even at the time of the hearing before him in February, W was aware of the Chinese decree and the availability of an appeal route. W chose not to enter an appeal.

    Peel J was satisfied that this was not a case where the respondent spouse (in this case W) had no option but to submit to the divorce. But, one where the petitioning spouse (H) had taken reasonable steps to notify her and in which she had reasonable opportunity to take part in proceedings.

    Similarly, despite making the "gravest of accusations against the Chinese legal system" (alleging "discrimination, endemic corruption and blatant wrongdoing"), W fell short of establishing the public policy ground. This was, in part, because the international community requires "respect and recognition for the judicial acts of another nation" [44].

    In terms of the proceedings in this jurisdiction, Peel J noted that H had never sought to deliberately delay them; he simply ignored them. W had ample time to progress her divorce here and if the court did not act as expeditiously as it should have done to progress the decree nisi, that was not H's fault.

    Peel J therefore concluded that refusal of recognition under s51(3)(a) was not made out and that, in any event, he would exercise his discretion to reject the application.

    W could be entitled to bring proceedings under the 1984 Act for financial relief after an overseas divorce. On the basis that she will receive no financial award under Chinese law, she had "solid grounds" for a leave application. However, if she succeeded then the difference in approach between the 1973 Act and the 1984 Act "would likely be negligible" [46].

    Lydia Newman-Saville, Pupil Barrister at 1 Hare Court

Case note, published: 27/05/2021


Published: 27/05/2021


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