180 Divorces to be Set Aside?


Rapisarda v Colladon 2014

 

This is a very interesting and unusual case. It involves the Queen’s Proctor making an application to dismiss 180 divorce petitions,  Decree Nisis and Absolutes.  The opening paragraph in this case from Lord Justice Mumby reads:

  1. I have been hearing applications by the Queen’s Proctor to dismiss a large number of divorce petitions and also, in many of the cases, to set aside decrees of divorce (some nisi, some absolute) obtained in consequence of what can only be described as a conspiracy to pervert the course of justice on an almost industrial scale. At the outset of the final hearing on 9 April 2014 – the hearing was in open court – an important question arose in relation to the possible impact on the reporting of the proceedings of the Judicial Proceedings (Regulation of Reports) Act 1926 (the 1926 Act). Needing time to consider the matter I expressed no view at the time save to remind the journalists who were present in court of the existence of the 1926 Act and to draw to their attention some words of Sir Stephen Brown P in Moynihan v Moynihan (No 1) [1997] 1 FLR 59, 62.

The judgement has been analysed in quite some detail by Suesspicious Minds “The Pages of a Most Fragrant French Novel”  - but with no explanation of WHY the Queen’s Proctor has made this application – mainly because the Judgement doesn’t specifiy the WHY.

I will come to the WHY in a bit, but first, wanted to explain a bit more about the role of the Queen’s Proctor. Allen Hortsman in Victorian Divorce notes  the  Queen’s Proctor “was a fearsome shadow looking over all proceedings“. Suesspicious Minds sums up the role of the Queen’s Proctor as

he or she, is the person who is authorised to intervene in litigation on behalf of the Queen, i.e when there’s some heavy issue at stake. For divorce, that all flows from s8 of the Matrimonial Causes Act 1973″

The delay between a Decree Nisi (or Conditional Order) and a Decree Absolute gives the Queen’s Procter an ideal opportunity to intervene in proceedings – such as is the case with these 180 divorces – however, nowadays, such opportunities for intervention are somewhat limited. Gone are the days when divorces where based on the concept of matrimonial offence and where divorce was prohibited on the grounds of collusion  - ie the parties had created a matrimonial offence – the scenario where the man allows himself to be “found” by a private investigator in a hotel  room with another woman, thus meaning the wife could petition on the grounds of adultery.  The Queen’s Proctor would investigate such divorce applications if suspicions were raised that collusion was afoot.  If you want to read more about how these investigations were conducted then read Holy Deadlock written by  A.P. Herbert.

On the subject of collusion, one unnamed Justice in 1890 expressed the need for total honesty in divorce cases:

“Now what is this special provision with regard to collusion? I think its object is to compel the parties to come into the Court of Divorce with clean hands. It is to oblige them to bring all material and pertinent facts to the notice of the  Court.,m to prevent their blinding the eyes of the Court in any respect; to oblige them so to act as to enable the Court to do justice between the parties”

 

It is the issue of collusion that is evident in the 180 divorce cases in which the Queen’s Proctor has intervened and requested they be set aside. Here is the WHY ;

They all involve Italian couples – in 179 of the petitions submitted, the postal address of a post box on the High Street of Maidenhead was used to establish residence in the UK.  In the 180th case, the petitioner claimed to be living at an address in Epsom, Surrey  - all the spouses lived in Italy, none of them were actually resident in England, and therefore did not meet the residence criteria.  It is illegal to use a false address or to falsely claim residence for the purposes of a divorce.  The Italian couples were alledegdly promised a “quick” divorce in England – the divorces were allegedly organised divorce agency charging up to €4,000 for a quick divorce.  The courts in England/Wales have no jurisdiction to consider divorce applications where both parties do not meet the residence criteria and live outside the jurisdiction. This is indeed an attempt to pervert the course of justice on an almost industrial scale.

When the application was first made, last year, and the initial hearing was held in October 2013, there were representatives from both Thames Valley Police and the Italian Government to observe proceedings.

Divorce in Italy is complex - it was only  introduced in Italy in 1970 and Italian couples face a mandatory three-year period of legal judicial separation before being able to apply for divorce. In most cases, the entire divorce process could take up to 5 years as a result of the complexity of Italian bureaucracy and renowned slowness of the Italian judicial system.  Gabriele Giambrone, Senior Partner of Giambrone Law has commented:

“As a result of Italian archaic legislation on the dissolution of matrimonial affairs over the recent years more and more Italians have recently embarked in forum shopping around EU member states, mainly England and Rumania, by circumventing these Italian mandatory rules and using European Union legislation which recognizes divorces granted in any EU member state. The consequences for the individuals implicated in this fraudulent scheme may be far reaching: – adds Giambrone- Divorces obtained illegally or fraudulently overseas will not be recognised in Italy and, if any of the 180 couples has remarried in Italy in the meantime, they are at risk of being deemed bigamist in law, which is considered to be an additional criminal offence so they are also at risk of criminal prosecution in Italy”

I’m astonished that there has been no press coverage of this at all – after all the column inches devoted to the “sham marriage” scandals of recent years, I would have thought that “sham divorces” would have at least warranted some sort of coverage – if only to show that the Queen’s Proctor is doing his job properly, and to send out a clear message to others that England/Wales is not the place to lodge a fraudulent divorce petition with a bogus address.

 

2 Comments

Filed under court outcomes, Court Procedure, Divorce, family law, marriage

2 responses to “180 Divorces to be Set Aside?

  1. As mentioned in the Family Law Week Finance and Divorce June 2014 Update – http://www.familylawweek.co.uk/site.aspx?i=ed130223

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