Till Maidenhead do us part

Maidenhead is a large town in the Royal Borough of Windsor and Maidenhead, Berkshire. It has an urban population of around 80,000 and its current MP is Teresa May, the home secretary. Nothing untoward about any of that. This seemingly ordinary town has recently been found to be at the centre of a bizarre "conspiracy to pervert the course of justice to an almost industrial scale", according to Sir James Munby, the president of the Family Division.

The case concerns the discovery that some 180 divorce petitions filed by Italian couples between 2010 and 2012 were based on fraud and forgery, and raises serious issues regarding the ever-increasing interplay between international and domestic law, practice, and how an ever-increasing mobile population must be alive to the pitfalls of international family law. The facts of the case are breath taking and highlight a major flaw in the English paper-based divorce process compared to other jurisdictions.

The case

Over a two-year period, a number of Italian couples engaged the services of Dr Frederica Russo to obtain an English divorce. In some 137 family courts across the country, 180 petitions were issued, with all but one of them citing Flat 201, 5 High Street, Maidenhead, as being an address of either the petitioner or the respondent. An innocuous address one would think, save for an eagle-eyed member of staff at the Burnley County Court who remembered that she had seen it before, in another petition of another Italian couple. It made no sense. Why would two unrelated cases have the same address, and what connection did an address some 169 miles away have with Burnley?

An investigation was launched and a search warrant executed for Flat 201 by Thames Valley Police. DS Jonathan Groenen commented in his witness statement: "It is not possible for 179 applicants or respondents to reside at this address. Indeed given the dimensions of the mailbox it is clear that not even a single individual, however small, could possibly reside in it." The address was fake and raised the question of what this meant for the petitions - were they valid or invalid?

Untangling the web

The petitions fell into three categories. The first category was those petitions which had only just been started and as yet had not progressed to the decree nisi stage. The second category was those which had reached this stage, and the final group was those where decree absolutes had been pronounced, thus formally ending the marriage and allowing the parties to move on and re-marry should they wish to do so.

For all three categories the court had to return to the most fundamental of considerations, namely, did the English court have the jurisdiction in each case to deal with the petition?

In England and Wales, divorce jurisdiction is established by either the Council Regulation (EC) No. 2201/2003, or where not relevant, either party must be domiciled in England and Wales at the commencement of the divorce proceedings. In all of the 180 petitions, either the petitioner or the respondent was cited as being habitually resident at Flat 201. On the face of it, there was therefore jurisdiction for the court to handle the petition.

The next consideration was then whether the marriage had irretrievably broken down by relying on one of the five facts - adultery, unreasonable behaviour, two years' separation
with consent, desertion, or five years' separation. All of the petitions were based on the parties having been separated for two years.

Those petitions which had progressed to the decree nisi and absolute stages had required further documents to be filed by the parties. What was unclear was whether the parties had knowingly been duplicitous or whether they had just signed paperwork which was then completed by a third party. In any event, the result was that in some cases the court had gone on to grant a decree absolute and the parties had gone on to re-marry, and in one case, even had another child.

Fraud unravels all

In a lengthy judgment, Sir James Munby considered the evidence before him and concluded that all of the divorce proceedings instigated by the 180 petitions were completely fraudulent and all of the decrees pronounced had been procured by fraud. The English court did not have jurisdiction to deal with the matters because none of the parties were in fact habitually resident in England and Wales. In such circumstances where there is a finding of fraud, it is a matter of law that any decree is void, regardless of whether the parties have gone on to re-marry; there is no judicial discretion permitted. This means that some of the Italian couples involved are now bigamists. Bigamy is a crime in many western countries and, in Italy, it can lead to between one and five years' imprisonment.

In those cases where no decree had been pronounced, the petitions were dismissed. The question of why 180 Italian couples want to divorce in England still remains. The answer is most likely a combination of factors.

First, the Italian divorce process is notoriously slow. To divorce in Italy, a couple must first have been formally separated for at least three years before divorce proceedings can begin. An informal separation is not enough; it must be sanctioned by the court following a hearing. In the UK however, providing you have been married for one year, a petition can be issued, providing you can show that the court has jurisdiction to deal with divorce, and that one of the 'quickie' divorce grounds (adultery or unreasonable behaviour) is applicable.

Second, it is commonly known and accepted that the financial awards available in England can be generous both in terms of capital and income. The starting point in all cases on capital is a 50/50 split of assets, unless there are good reasons to depart in favour of one party. In relation to income, there is ongoing maintenance available to the financially weaker spouse for the rest of their life if appropriate, as well as different types of pension orders. The English courts also have a dogged reputation for pursuing full and frank financial disclosure from both parties.

Slow moving courts

In an ever increasingly mobile population, family practitioners are seeing a steady rise in international divorces. Due to the stark differences
in financial awards and the time frame in which divorces can be granted,
it is unsurprising that forum shopping has increased. In this fast-paced technology-driven age, there is little wonder that some people will want to divorce as quickly as possible, and move on with their lives at a speed that is not matched by their native court. In such circumstances, it is incumbent on any solicitor at an initial meeting to consider whether there is another country better placed to handle their client's divorce and finances. If there is, then specialist advice in that jurisdiction should be obtained immediately. This then allows the client and the solicitor to consider the full array of choices before them, and make an informed decision as to which country would
be best placed to deal with matters.

This case has highlighted the need for better checks to be built into our current paper-based divorce process. Where parties can act in person in the knowledge that the addresses cited in the petition are often not checked by the court, the possibility of fraud and the courts being hoodwinked into dealing with a divorce that it does not have the jurisdiction to hear will invariably be high. This time next year, it is possible that the number of courts able to handle divorces will have reduced to just 20 or perhaps 12. This will helpfully limit the possibility of a similar plot happening any time soon again.

No one comes out of this case with glowing colours, except perhaps the eagle-eyed member of the court staff in Burnley. Without her spotting the address, this 'industrial scale' story
of deception and fraud would not
have been uncovered and Maidenhead would have continued to be a hotbed
of Italian divorce.

Miranda Green is a partner in the family team at Mundays