Another case of disastrous family litigation

family life, family law

How many times have I seen this? Parties to family cases so determined to ‘win’ that they embark upon long and disastrous litigation, utterly oblivious of the effect it is having upon their finances, their emotions and their children. Of course, there are no winners in such situations. Everyone loses save, of course, the lawyers.

The latest example of this awful but all too common phenomenon is the case Radseresht v Radseresht-Spain, which popped up on Bailii last Friday. The case concerned an application by the husband for a declaration that a divorce granted in Dubai in 2009 should be recognised in this country, in accordance with the Family Law Act 1986, thereby preventing the wife from proceeding with her divorce that she subsequently issued in this country. It was the latest round in proceedings that have resulted in the parties running out of money (they were previously both represented by well-known specialist family Queen’s Counsel, but now the husband no longer has a QC, and the wife no longer has any representation at all).

The facts of the case were that the parties were married in Tehran in 1992. The husband, now aged 72, is a Muslim, of Iranian origin. The wife, now aged 49, is of Irish Catholic origin, although she converted to Islam for the purposes of the marriage. They have three children, all born in the UAE, now aged between 24 and nearly 17. The husband and the wife ran successful businesses together, and by 2009 their business and property interests extended to Ireland, USA, Iran and UAE, and they had a good standard of living.

In 2009 the husband discovered that the wife had had a brief relationship with another man. He instructed lawyers in Dubai and divorce proceedings were instituted. I will not go into the convoluted details, but the suggestion was that on the 24th September 2009 the Dubai court granted a ‘revocable divorce’. It is this ‘divorce’ that was the subject of the husband’s application for recognition, which went before Mr Justice Cohen, in the High Court.

The Family Law Act 1986 provides that recognition of the validity of an overseas divorce may be refused if it was obtained without giving proper notice to the other party, or without the other party having been given an opportunity to take part in the proceedings. Mr Justice Cohen found that this ‘divorce’ should not be recognised on both grounds. As to notice, the wife had none – she had not been notified of the filing of a divorce petition, or of the commencement of proceedings. Nor did she have any ability to participate in the proceedings, having been told nothing about them.

As I mentioned above, this was, allegedly, a ‘revocable divorce’. Strictly, the issue of revocability is irrelevant if the divorce was not recognised, but nevertheless Mr Justice Cohen still addressed it. Essentially, under Islamic law a divorce can be revoked if the parties resume their relationship shortly thereafter. Again, there is no need for me to go into the details, but Mr Justice Cohen found that the parties had intended to remain married during the relevant period.

And so the proceedings will continue in this country. Mr Justice Cohen ended his judgment with an exhortation to the parties, of the type we have so often seen before:

“This case has been a financial and emotional disaster for the parties and the children. It has been obvious throughout this hearing that the parties have found it very difficult. I have not found that either party has the monopoly of truth or virtue. I am sure they both care deeply for their children, who have been so affected by these proceedings, and I urge them as strongly as I can to sit down and mediate their remaining differences so that they can cease this battle and the whole of the family can benefit.”

I know I have said something similar here previously, but let us hope that the parties heed this excellent advice.

I would also hope that anyone reading this who is involved in heavily contested family litigation will take Mr Justice Cohen’s comments on board. It is a forlorn hope that I will never see such cases as this again, but at least I may see rather less than I have to date.

You can read the full report of the case here.

Photo courtesy of TaxRebate.org.uk

John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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4 comments

spinner - November 23, 2017 at 3:55pm

The problem here is the system of divorce in England which set’s people up to behave in this way. If there were some predefined rules as to how long maintenance would be paid for, there should be an equal split of the assets acquired during the marriage, respect for prenuptial agreements all just normal basic ideas that are common place throughout the rest of the world yet because the judge has such wide discretion and the process itself is setup as a fight with your chosen representative in this fight, obviously it’s going to get people wound up and they are going to fight and everyone except the lawyers lose.

John Brick - November 23, 2017 at 11:18pm

Who’s to blame for this? Certainly litigants want to ‘win’. In close relationships gone sour, there is also usually some element of ‘revenge’ associated with separation. Emotions can run high. Ever more the need for calm mediation to try and find some common ground and an early resolution. Solicitors don’t make money out of ‘calm’. They make money out of dissent and division and, of course, litigation.

I had a civil matter and advised mediation should be considered. My solicitor suggested there was no point and should go to litigation. The result has cost me my long-term relationship, my home, my health and over £250,000.00 in costs.

ADR is presently being considered by a working party of the Civil Justice Council, following a report that it is not working or being used as it should. I blame this on solicitors more interested in lining their pockets that doing what is best for their clients.

Write to the Civil Justice Council, as I have, and encourage it that ADR/mediation must be made compulsory ahead of any legal proceedings. Some, perhaps many, solicitors seemingly cannot be relied on to put their clients interests before their profits, and lives are avoidably severely damaged or destroyed.

The law needs to step in to force the legal profession to act with conscience and integrity in respect to this matter, by making ADR compulsory. Add your voice to this important matter.

Jo Archer - November 24, 2017 at 8:29am

With all due respect, I think you have missed the point entirely. In most case there is an imbalance of power – one party has the funds and the other wants some, for themselves and the children.

What is so incredible, to me, is the amount of money the more powerful party will spend on lawyers that they could, willingly, spend on their children, instead. No one else is making that choice for them.

While the courts can presume equal responsibility, in reality there is usually one party who is using the system to punish the other. And that must stop.

Andrew - November 26, 2017 at 7:14pm

I’ve said it before and I’ll say it again. Bring back Calderbank or apply Part 37 of the CPR – there is no better way to discourage litigation a l’outrance.
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Provided of course judges carry through and award costs accordingly – if necessary with a delay (at penal interest rates) during the minority of children.

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