10 October 2014

The Curious Incident of the Italian Divorce Fraud - The Rapisarda Files

The most recent judgment in Rapisarda v Colladon [2014] EWFC 35 (the facts for which seem to have been lifted from a theatrical sit-com, rather than the daily cause list) was handed down this week by the President Munby P. This case which is interesting for practitioners and divorcing couples, especially those overseas, revealed fraud in the English Family Court ‘on an almost industrial scale' and first reached the eyes of the public in May. The cast list included the Queen's Proctor, the Attorney-General, the President of the Family Division, a canny court clerk, Thames Valley Police and 180 Italian couples all but one of which, curiously, used ‘mail box 201' in Maidenhead as their ‘place of habitual residence' to satisfy jurisdiction requirements for divorce in England. Add to that ‘the moving spirit of the operation in Italy', Dr R (who seems to have pocketed thousands of Euros at the expense of the English court system and the hapless (still married) Italian spouses and the Italian go-between, Mr G who ‘assisted lawyers in Italy with facilitating divorces across the whole of Europe', and what do we have? Answer: a declaration from the President that forgery, affidavits ‘reeking of perjury', deception of the English Court, perversion of the administration of justice; a lecture for foreign practitioners on jurisdiction; and a promise to reform the system so that this never happens again. 180 divorce petitions (some of which had reached decree nisi and decree absolute stages) issued in county courts across England over a two year period between 2010 and 2012 by 180 Italian couples, seeking to obtain a ‘quickie' divorce in England, (many of which resulted in a final decree absolute) have been set aside as being void for fraud and the petitions dismissed. None of the Italian spouses, living in various locations throughout Italy, including Verona, had ever lived in England, let alone a fictional address in Maidenhead. A high number those couples have not responded to the notices sent to them by the Queen's Proctor and some may remain none the wiser, continuing their lives as though divorced, when actually, they remain very much joined in matrimony. The significance of this case, aside from those issues arising from potential bigamy cases and parental responsibility for children born since the false divorce decrees is that it has highlights, once again, the complex nature of divorce and family breakdown, especially in those cases where there is an international dimension. This case will result in procedural changes in the Family Court to guard against any repeat performances of such deception and fraud. The number of family courts empowered to process divorces petitions is likely to be reduced drastically in the coming months and the procedural formalities streamlined. However, in many respects, this judgment is meant for our overseas cousins. The President has used this piece of theatre to reach an international audience. Mindful of the fact that the judgment ‘will be read by many unfamiliar with our court system', he has sent a warning shot to those seeking to deceive the ‘divorce capital of the world'. He sets out in exquisite detail (lest there be any doubt) the basis of jurisdiction for divorce in England and Wales – only those divorces based on legitimate jurisdiction grounds will be allowed in England. England is not to be used for 'divorce tourism'. The European rules on jurisdiction for divorce are clear and should not be circumvented. We are often contacted by Italians making enquiries as to whether obtaining a 'quickie' divorce in England is possible. Unless they meet the residency requirement our advice has always been that this route is not an option. Currently in Italy couples have to wait three years from legal separation before applying for a divorce unless there is jurisdiction in another country. Interestingly in the context of these cases there are moves afoot in Italy to shorten this timeframe to one year if there are no children and two if there are children. Whether there is an appetite for change in Italy remains to be seen, especially given that Catholicism is engrained in the fabric of society and on the back of this would Ireland move away from the 4 year separation before divorce rule? Given our long established and very strong Italian practice we frequently deal with jurisdiction races between Italy and England. Starting divorce proceedings first in one country or the other can have a material impact on the level of financial settlement that the weaker party receives or the stronger party has to pay. Even if jurisdiction is secured overseas, there are often other routes which can be taken in England by those foreign nationals seeking to augment any provision awarded to them by a foreign court. Changes may be afoot and clear advice and guidance is a must. Co-authored by Natalie O'Shea and Suzanne Todd

Category: Blog