English court refuses to recognise Malaysian divorce

A judge in London refused to recognise a divorce that was granted in Malaysia, leaving the way open for the wife to pursue a claim for ancillary relief – without having to bring a special claim to obtain a finance order after the finalisation of a divorce.

In Liaw v Lee (Non-recognition of divorce) [2015] EWHC 1462 (Fam), the Judge, the Honourable Mr Justice Mostyn, said it was important that justice was not only done – but that it was seen to be done. The husband had lied in the Malaysian proceedings – saying his wife had disappeared. This, the husband had claimed, made it impossible to serve her notice of the proceedings. The husband was then, with the aid of his solicitor who was complicit, able to get his divorce expedited.

Judge Mostyn said he had “no hesitation” in granting the wife’s application to have the decree absolute not recognised. He found that the husband had engaged in “sharp practice” and the wife had been given no notice or any opportunity to respond to the Malaysian divorce proceedings.

The couple had married in Singapore in 2001 and had a daughter four years later. They separated in 2010. Their main home was in Westminster, London. An earlier divorce petition from the wife had failed in 2011 – because the allegation she made about her husband’s conduct had been insufficient. She filed an amended version last January.

Unknown to her, her husband had begun steps to obtain “a high speed and completely secret” divorce in Malaysia a month earlier. The husband lied to the Malaysian court saying there were no divorce proceedings underway in any other jurisdiction – even though his solicitor had been in correspondence with the wife about the London divorce proceedings regularly throughout the period between the two London petitions.

Judges have discretion under s. 51 (3) of the Family Law Act 1986 about whether to recognise overseas divorces. Judge Mostyn said it was undesirable to have different decisions in different places about whether a marriage was finally over. He also said there was no practical reason to reject the Malaysian divorce – because the wife could still seek a post-divorce financial settlement under section 3 of the Matrimonial and Family Proceedings Act 1984.

He decided, however, to refuse recognition of the Malaysian divorce because it would be “grossly unjust” and “reward dishonesty and sharp practice” to recognise it.