An important Judgment on the validity of an overseas marriage, and compliance with the significant procedural rules which apply if one wishes to defend divorce petitions, has recently been handed down in the case of N v N (Afghanistan: Validity of an overseas marriage: Procedure) . Jennifer Lee of Pump Court Chambers acted for the successful petitioner, who was seeking a divorce from the respondent. The parties disagreed over whether a marriage ceremony (held by proxy) in the 1980s had taken place, and whether it should be recognised as a valid marriage in this jurisdiction. There were procedural difficulties stemming from a marriage certificate not having been attached to the petition and non-compliance with the FPR and court orders by the respondent. The Court noted that there were many reasons why a valid marriage certificate might not be available, and the FPR clearly contemplated such a situation and provided for it. There was nothing in the FPR or the authorities cited which provided for there being no requirement to file an acknowledgement of service or an answer where a petitioner had not filed a valid marriage certificate. The Court made the following important observations:
a. The overriding objective places a duty on both the court and the parties. Therefore, parties each have a duty to observe and apply the overriding objective.
b. The filing and service of an answer to a divorce petition is a significant procedural step that alters the status of the proceedings to a contested divorce. This leads to a material change in the procedure that the court will adopt when considering the petition.
c. The filing of an Answer provides an important opportunity for the Respondent to set out the summary of his objections and the foundation for those objections.
d. The filing and service of an answer must take place within the prescribed mandatory time scales as set out in r 7.12(8) FPR.
e. If a party cannot comply with those mandatory terms or wishes to invite the court to set different timescales, that party must alert any respondent to such an application and seek his/her consent.
f. Whether by consent or by contest, the party seeking a variation of the stated time scales must make an application to the court for relief from sanctions.
g. Whilst there are no expressed sanctions for non-compliance with these terms, where no answer has been filed and served, the petitioner will be permitted to apply for a decree in divorce and associated costs.
h. When considering such an application, the court must have regard to the factors that are set out in r4.6 and to apply the same in light of the overriding objective.
i. Each case will be decided on its own facts, but generally minor infractions of the rules that cause no prejudice to the respondent will be readily dealt with in favour of the applicant whilst material infractions may require a more detailed consideration of the relevant facts.
Given the respondent’s continuing failure to engage with and address the procedural defects in his case, the balance of fairness, justice and proportionality demanded that the petitioner’s application be granted. The case would be listed for a pronouncement of a decree nisi.
To view the full Judgment, please click here.
Jennifer Lee acted for the petitioner in the case of N v N (Afghanistan: Validity of an overseas marriage: Procedure) EWFC B55. For further information on her practice, please contact her clerks, Sean Gentleman (email) or James Collier (email).