The following article is on an issue that should certainly pique readers’ attention – that of fraud in divorce cases.

The following article is on an issue that should certainly pique readers’ attention – that of fraud in divorce cases. As regularly noted in these pages, the unpleasant fact of divorce and marital breakdown is an important factor of wealth management in the current age. Here, Fiona O'Sullivan, a consultant and Louise Jackson, a solicitor in the family team in Weightmans’  Birmingham, UK, office, take a look at this subject. The issues here relate to the legal system in England and Wales, as Scotland operates under a different system. Readers are welcome to respond.

The President of the Family Division recently set aside the pronouncements of Decree Nisi and Decree Absolute as being void due to fraud and dismissed the underlying divorce petitions in 180 cases. These cases all arise from investigations which revealed that between August 2010 and February 2012 180 divorce petitions had been issued using the same address across 137 different courts in England and Wales.

Most courts handled only one petition however an astute member of staff at Burnley County Court noticed that two petitions involving Italian parties has used the same address in Maidenhead and the scale of the deception was subsequently revealed.

This scheme was orchestrated by Dr Russo who charged fees starting from €3,750 to Italian couples seeking to divorce in England and Wales. Dr Russo sought to abuse the divorce process in England to avoid the long delays associated with divorce in Italy; he took advantage of the ability to file a divorce petition in any family court in England and Wales irrespective of the parties’ addresses which allowed the petitions to be scattered at courts across the country.

In all of these 180 cases the parties asserted that either the Petitioner or the Respondent was habitually resident in England and Wales and provided a false residential address. In all cases the petitions were founded on a lie that either the Petitioner or Respondent resided at the Maidenhead address which was found not to be a residential address but a PO Box service. As a result of this lie the court was “induced by deception to accept that it had jurisdiction to entertain the petition”. The court found that this “material deception” by fraud and perjury had therefore perverted the administration of justice.

It also became apparent that Dr Russo encouraged parties to sign the relevant court forms before they had been completed in order that the facts could be manipulated to satisfy the English courts. In one of these 180 cases a party filed a statement evidencing that not only was the place of residence within the petition incorrect but also the petition suggested the parties had been living separately for two years (in order to rely upon the fact of two years separation and consent as a basis for the petition) although this was not the case.

The pronouncement of Decree Nisi indicates that the Judge is satisfied with the grounds for the divorce. However, the marriage is not dissolved until Decree Absolute. The President set aside Decree Absolute even in cases where the parties had remarried or had children. The parties in these cases will need to take advice from Italian lawyers with regard to the validity of their re-marriage. Under English law, if a Decree Absolute is set aside due to fraud then the parties remain married. As a result a subsequent remarriage is bigamous and therefore void.  

Matrimonial lawyers more commonly encounter deception in the context of one party seeking to achieve a financial gain (for example seeking to dispose of matrimonial assets or suspicions of parties seeking to mislead the court regarding the extent of their wealth). However the frauds in these cases occurred as a result of Italian married couples acting together in order to take advantage of the speedier divorce process in England when compared to the Italian system.

In England divorce proceedings can commence after the parties have been married for one year on the basis of unreasonable behaviour and adultery whereas in Italy couples must be legally separated for three years before they can apply for a divorce.

In our experience a party contemplating a divorce is often keen to secure the jurisdiction of the English courts rather than foreign courts in the context of financial remedy proceedings arising from divorce. This is due to a perceived advantage to that party (for example the courts in England adopt a more generous approach to spousal maintenance than in many other jurisdictions). In the event of a dispute between the parties the court will scrutinise the grounds for jurisdiction however in these cases no such analysis took place as the parties both accepted that the case should proceed before the English court and there was therefore no challenge to the court’s jurisdiction.

The President of the Family Division commented that he hoped that plans unconnected to these cases to centralise the handling of divorce petitions and concentrating this work in less than twenty locations will reduce the risk of further deception.  

There remains however the potential for deception in individual cases if couples seek to co-operate together to exploit the English courts through falsifying court documents. In reality the court may have been deceived in many previous cases which will remain undetected and couples may collude by falsely representing to the courts that either party habitually resides in England and Wales in order to obtain a divorce from the English courts.

The current system does not provide any mechanism for habitual residence to be independently verified and if this is not challenged by either party the court may accept that it has jurisdiction based on dishonest statements filed by the parties. We therefore fear that abuse of the English courts may be repeated (albeit likely on a smaller scale) despite these reforms.