X v Y. Rectifying divorce orders when an earlier, foreign marriage ought to have been the real object.

X v Y [2020] EWHC 1116 (Fam) is an uncomplicated case for conflict of laws aficionados. It includes a bit of Vorfrage, a bit of qualification, and a bit of temporal application of Brussels IIa.

Applicant Mr X seeks against the respondent Miss Y to rectify, as he sees it, a decree of divorce granted in relation to his marriage to Miss Y as long ago as 1997. They were married, first of all at a ceremony in Madrid on 25 May 1993, without the knowledge of any member of the wider family. Relationships between the wider families then mellowed to a degree, and there was apparently a second ceremony of marriage conducted in a Registry Office in London on 31 May 1994.

Relevant divorce and financial orders followed  in 1996 and 1997. The divorce petition had been based upon the assertion that the marriage to be dissolved was the second marriage, namely the one conducted in England in May 1994. No reference was made to the earlier marriage conducted in Madrid in 1993. Respondent’s case is that she considers that she is still married to Mr X, and that the Spanish marriage governs their status, and that they cannot be divorced unless and until there are divorce proceedings in Spain. She has, however, indicated a willingness to agree to a contrary outcome, provided a very substantial financial settlement is now made in her favour.

The 1996 petition only referred to the 1994 marriage, and it was that marriage that was referred to in the decree nisi and the decree absolute. It is important to Mr X that the declaration of his divorced status is sound, one assumes because he has remarried. He therefore seeks to rectify the decree absolute, and before it the decree nisi, so that they reflect that the marriage being dissolved was the Spanish marriage in 1993.

The Brussels II Regulation only entered into force in 2005 and jurisdiction for the decrees was governed by section 5 of the Domicile and Matrimonial Proceedings Act 1973: “The court shall have jurisdiction to entertain proceedings for divorce or judicial separation if (and only if) either of the parties to the marriage (a) is domiciled in England and Wales on the date when the proceedings are begun or (b) was habitually resident in England and Wales throughout the period of one year ending with that date.” Mr X was domiciled in England and Wales at the time, there was therefore valid jurisdiction.

Relevant authority for the correction or variation, is Thynne v Thynne [1955] 3 All ER 129 which McFarlane J applies to rectify the decree nisi and the decree absolute, so that they record the marriage that was being dissolved as being the Spanish marriage of 1993.



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