Ali v Rodrigues: Forum shopping in divorce proceedings and the status of non-EEA family members

This post has been contributed by Dr Manos Maganaris, Module Convenor for Conflict of laws.

Brown gavel resting

The decision of 2 October 2019 of the High Court (Family Division) in Ali v Rodrigues, [2019] EWHC 2776 (Fam), provides an interesting insight on the impact that the dates of divorce decrees can have to a non-EEA spouse immigration status. As it is of importance in this instance, it is reminded that a former EEA family member can retain a right to reside in an EU state, amongst others, if the marriage has lasted longer than 3 years. From a conflict of laws point of view, the interest in this case lies on the fact that divorce decrees from two different fora (English and Scottish courts) were pronounced.

Mr Ali, a Pakistani national married his wife, a Portuguese national in Scotland on 7 April 2014. On 2June 2015 the wife petitioned for divorce on grounds of unreasonable behaviour. Subsequently a certificate of entitlement to a divorce was issued on 21March 2016 and the decree absolute was pronounced in the Romford (England) Family on 27 May 2016 (English decree). On 14 December 2016, as a result of the dissolution of the marriage and on the basis that the husband was no longer a family member of an EEA national, the Home Office notified Mr Ali that it was revoking his residence card.

Following the English decree, the wife remarried in 2016 and sponsored the application of her second husband to remain.

Mr Ali, on his part, petitioned for divorce in Scotland on 27 September 2016. On 6 November 2017, the decree absolute was pronounced by the Edinburgh Sherriff Court and Justice of the Peace Court (Scottish decree).

The issue here then is which of the two decrees stands. This consideration is of crucial importance as, if the English decree stands, the marriage will have lasted less than 3 years, which would mean that the right of the non-EEA former spouse to remain in the UK would not have crystallised. If, on the other hand, the Scottish decree stands, the marriage would have exceeded 3 years in length, and as such Mr Ali would retain his right to residence.

Mr Ali’s argument was that the English proceedings were tainted, as the application was not served in accordance with the Family Procedure Rules. Citing, amongst others, Everritt v Everitt [1948] 2 All ER 545, Ali Ebrahim v Ali Ebrahim (Queen’s Proctor Intervening) [1983] 1 WLR 1336 and Manchanda v Manchanda [1995] 2 FLR 590, Lieven J held that the English decree should stand. That is because when it comes to failures related to service, it is appropriate to look at the nature of what went wrong and where the prejudice, if any, lies (at 36).

According to the evidence, the wife took reasonable steps to find the husband’s location and, on the other hand, the husband was seeking to avoid service. The judge proceeded to state that in the discretionary opinion of the court, the irregularities in service did not render the English decree void but merely voidable and refused to exercise his discretion to order it to be set aside in favour of the Scottish decree.  If the English decree was set aside, the consequences would have been extremely severe for the wife. It would mean that the second marriage would have been made at a time when the first marriage persisted, something that would have a very serious impact on her, her second husband and the child.

 

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