Elizabeth Darlington led Annabel Barrons, instructed by Mishcon de Reya, in a successful appeal in the Court of Appeal (Moylan LJ, Holgate LJ and Males LJ). The issue was the correct test to be applied when considering whether to recognise an overseas divorce pursuant to section 51(1)(3)(a)(i) of the Family Law Act 1986. 

In this case, the parties were born in India but had lived in England from 2012. H is a British citizen and an Indian overseas citizen. W is a British citizen. They had two children, the youngest was born in England. The Judge at first instance determined that W was domiciled in England and Wales at the date of her application for a divorce, which was not challenged on appeal. The Decree Nisi which she obtained was therefore valid.

In respect of the Indian divorce, in broad summary, the Judge at first instance found that reasonable steps had been taken to give W notice of the Indian divorce proceedings, even though H was aware that she was living at an address in London, where proceedings were sent to W’s father’s address in India. Even if reasonable steps had been taken, the Judge would have exercised his discretion to recognise the Indian divorce.

The Court of Appeal unanimously allowed the appeal. Having considered the relevant High Court authorities, Moylan LJ, with whom Holgate LJ and Males LJ agreed, set out the approach to be taken in applying section 53(1)(a)(i). Moylan LJ confirmed that it is a two-stage approach. The first stage involves “an assessment or judgment” of whether reasonable steps have been taken. This is an evaluative exercise, not a question of fact. This includes considerations of the steps which were or were not taken (para 93). Secondly, the question is not whether the petitioner has taken reasonable steps but whether reasonable steps have been taken to give the respondent notice. Thirdly, “English standards” as referred to in Duhur Johnson requires the court to apply the English concept of what constitutes “reasonable steps”: “reasonableness is a common legal concept in English law and does not require further elaboration”. Moylan LJ preferred to say, in place of “standards” that the court is applying English legal principles and concepts when deciding whether reasonable steps have been taken and also when deciding how to exercise its jurisdiction (para 95). 

If reasonable steps were not taken, the second stage involves the exercise of a discretion, which requires consideration of all the circumstances of the case. It is a broad discretion.

Moylan LJ highlighted that when considering both reasonableness and the discretionary exercise that there is a need for “basic fairness” and “plain dealing” per Peter Jackson LJ in Ivleva v Yates para 71.

The decision of the Judge was overturned, the Court of Appeal determining that the Indian divorce should not be recognised; that W should be permitted to continue her divorce and financial remedy proceedings in England.