The current case of Botwe v Brifa 2021 EWHC 2307 is the latest instalment of cases where divorces obtained in Ghana “otherwise than by means of proceedings” have been held by the courts in England and Wales not to constitute valid divorce, although, invariably are valid and recognised by the laws of Ghana.
A complicating factor in divorce law is the question of giving recognition to foreign divorces. The divorce laws of countries and states differ, and so do their rules for recognition of divorces elsewhere.
Under the Family Law Act 1986 an overseas divorce obtained by means of judicial or other proceedings is recognised in England only if:
It is effective under the law of the country in which it was obtained; and
At the relevant date (that is, the date on which proceedings were begun), either party was either habitually resident or domiciled in that country or was a national of that country.
The term ‘judicial or other proceedings’ requires that there should have been some formal proceedings, either before a Court or some other formal body recognised by the state for that purpose (for example, in Pakistan the Union Council). It is an important aspect that the judicial or other body should be impartial as to the outcome of the proceedings.
In my previous article, titled Overseas Divorces and the challenge of Ghanaian customary divorce, I set out why some customary law divorces may be held as valid in England and Wales, although obtained otherwise than by proceedings.
The current case was determined in the High Court by Mr. Justice Cobb who highlighted the need for careful compliance with the provisions of the Family Law Act (FLA) 1986 of England and Wales when it comes to overseas divorce, to ensure that the divorce proceedings are recognised in England and Wales and therefore would not lead to a “limping marriages” situation.
In the current case, brought by the wife, Botwe under Section 51 and 55 of the Family Law Act 1986, the wife sought a declaration that she remains married to Johnson Brifa. The husband had argued that the parties had legally divorced in Ghana and that the divorce should be recognised in England.
The judge had the benefit of an expert report from Charlotte Boaitey, a Barrister at the English and Ghanaian Bar.
The crust of this case was whether the divorce in Ghana, albeit valid under Ghanaian law, was also valid under English law. The relevant section of the Family Law Act 1986 is Section 46, which covers the recognition of overseas divorce obtained otherwise than by proceedings
It is important to set out that in the case of Botwe v Brifa, the High court accepted that both parties were domiciled in Ghana although as the case quite clearly pointed out, the husband had an European citizenship, and the wife maintained a Ghanaian citizenship. Crucially, the court also found that at the relevant date of the divorce, both the wife and the husband were “habitually resident” in England.
Mr. Justice Cobb , at paragraph 64 stated “In relation to the statutory test, I am satisfied that:
- The divorce, which was obtained otherwise than by means of proceedings (section 46(2)(a) Family Law Act 1986) is “effective” in Ghana;
- At the relevant time, it is likely that both parties were domiciled in Ghana (section 46(2)(b)(i) Family Law Act 1986);
- Both parties were habitually resident in the United Kingdom throughout the period of one year immediately preceding 25 August 2019 (section 46(2)(c) Family Law Act 1986).
Accordingly, the court held that the divorce obtained in Ghana in accordance with customary law on 25 August 2019 cannot be recognised in England and Wales.
By the stroke of a pen, the case of Botwe v Brifa has resurrected an otherwise dissolved marriage, thereby creating a “limping marriage” syndrome.
The limping marriage syndrome was created because the court had found that both parties were habitually resident in the UK 12 months prior to the date of the divorce and therefore the courts in England will not recognise the divorce.
Accordingly, while in Ghana the parties will be treated as divorced, the customary divorce will have no effect in England on the status of the parties to it; by English law they remain married.
The courts have frowned upon such a situation, creating the “limping marriage” syndrome. This situation is something that must be avoided at all cost.
In Olafisoye v Olafisoye (No.2)(Recognition)  EWHC 3540 (Fam), it was found at :
“The effect of non-recognition here of a divorce which is valid or effective in the country where it was made is to create a so-called ‘limping marriage’ i.e., that the parties are treated as still being married here, when they are not so treated elsewhere. That is so obviously undesirable that the court leans, so far as possible and consistent with the legislation and justice, against exercising a discretion so as to produce a limping marriage.”
Again, in the case of Liaw v Lee  EWHC 1462 (Fam) at , Mostyn J stated further:
“…it is undesirable to have two different decrees absolute in different places in relation to the same marriage. A decree absolute is a matter of status and it is undesirable that the parties should have inconsistent decisions as to when their marriage was finally ended”.
Lastly, in the case of Lachaux v Lachaux  EWHC 385:
“The cases under section 53(1)(a) do show that the court is generally reluctant to bring about a state of affairs where there is a limping marriage, that is to say with the parties being married in one place but divorced in another, but that is not a general principle and such a result is of course contemplated in a successful application under section 51(3)”.
It is this unsatisfactory situation of creating a “limping marriage” which must be avoided.
The recognition of divorce affects a party’s status in the United Kingdom, it can affect matters like inheritance, nationality, immigration status, welfare benefit entitlement, remarriages. Marriages contracted under the false impression that the previous marriage has been dissolved will be a void marriage. It is such an unsatisfactory situation no one must find themselves in.
In this direction, the advice to the Ghanaian community in the diaspora, particularly in England, and those who seek to rely on customary divorces as evidence of their freedom to re marry, must always pay attention to law in England and Wales, particularly the Family Law Act in section 45 and 46.
The Matrimonial Causes Act (MCA) 1971 (Act 367) of Ghana makes provision for dissolutions of customary marriages.
It is therefore advisable that in situations where parties are resident or habitually resident in the United Kingdom but seek to have their marriage dissolved in Ghana under customary law, the marriage must be dissolved under the Matrimonial Causes Act. That would be consistent with “proceedings” under Section 45 of the Family Law Act 1986.
A word of advice though, parties seeking a ratification or recognition of an “otherwise proceedings” divorce in the Ghanaian courts would also be be caught by section 46 of the Family Act 1986.
A perfect solution is to start the proceedings from scratch in the Ghanaian courts as required by law.
It is therefore advisable that before one embarks on a customary divorce in Ghana, two factors must be determined:
- Is the process that is being undertaken a court process or proceedings which will qualify under section 45; and
- Have any of the parties been habitually resident in England for at least 12 months prior to the initiation of the customary.
If the answers to the above is YES, then the customary divorce is unlikely to be valid in England and Wales.
The main factor in all of this is the concept of habitual residence. Unfortunately, this is not defined in the legislation.
Other factors that must be considered are:
- Recognition of the customary divorce would be refused where the divorce itself is incompatible with the decision already in existence, determining the substance or validity of the marriage.
- Where there was no subsisting marriage in respect of which divorce or legal separation would be granted.
- Where insufficient notice or no notice of the proceedings in which the divorce was obtained was given to a party; and
- A party had no opportunity to participate in the proceedings and recognition of the divorce would therefore be contrary to public policy, as it recognition would be manifestly contrary to public policy in England and Wales.
In Ivleva v Yates  EWHC 554 (Fam), the wife’s application for the recognition of a divorce granted in Ukraine on 9th October 2013.
The judge concluded that the wife did not take reasonable steps to give husband notice of the Ukrainian proceedings, before considering whether to recognise the Ukrainian divorce. On this he found that justice to the husband required that recognition of the Ukrainian divorce be refused.
The judge stated that applications of this kind should not be governed by pragmatic reasons alone but also by a “basic sense of fairness”.
The consequences of an invalid foreign divorce can be vast and costly and may ultimately lead to a subsequent marriage being declared null.
In this effect, it is advisable to always seek legal advice before embarking on divorce outside England and Wales.
The writer is a Solicitor to the Senior Courts of England and Wales, also a member of the Ghana Bar Association. He is also a member of the Family Law Accreditation (England and Wales) a recognised quality standard for family law practitioners.