Reaffirming Davis in Family Appeals: NICA’s strict approach to out‑of‑time appeals and to overseas divorces obtained without proper notice

Introduction

This commentary examines the Court of Appeal in Northern Ireland’s decision in Berisha v Berisha [2024] NICA 81 (Keegan LCJ, Treacy LJ, Horner LJ; judgment delivered by Treacy LJ). The appeal arose from an order made by Huddleston J on 22 January 2020 which (i) granted a decree nisi in Northern Ireland and (ii) refused recognition of an earlier Kosovo divorce under sections 51 and 53 of the Family Law Act 1986. The husband (appellant) sought to set aside that order almost four and a half years later.

The central—indeed dispositive—issue on appeal was whether the husband should be granted an extension of time to appeal out of time under the Rules of the Court of Judicature (NI). The case therefore squarely engaged the well‑known Davis v Northern Ireland Carriers [1979] NI 19 principles governing extensions of time. The Attorney General for Northern Ireland appeared as amicus curiae at the request of the Lady Chief Justice, reflecting the potential public interest in cross‑border recognition of marital status.

Substantively, the background involved parallel divorce proceedings: the husband’s petition and decree in Kosovo (December 2019) and the wife’s petition in Northern Ireland (issued May 2019). The High Court refused to recognise the Kosovo decree under section 51(3) of the 1986 Act, on the footing that the wife had not been properly notified or afforded a fair opportunity to participate. The husband’s eventual appeal was not only years late, but also came against a backdrop of litigation misconduct in the ancillary relief proceedings, including a committal to prison for contempt.

Summary of the Judgment

• The notice of appeal was lodged and served years after the six‑week time limit prescribed by Order 59 rule 4(1)(c) of the Rules of the Court of Judicature (NI) 1980. The Court had power to extend time under Order 59 rules 10(1) and 15 and Order 3 rule 5, but such discretion is governed by Davis.
• Applying the Davis factors, the Court refused to extend time. The delay was “extraordinary,” inadequately explained, and accompanied by significant prejudice to the respondent (wife). The appellant was no stranger to time limits (he had sought and been refused extensions in related matters) and had been legally advised during substantial periods.
• The Court rejected the appellant’s contention that there was a point of general legal substance justifying an extension. The recognition issue was case‑specific; the underlying merits did not raise any broader point about recognition of foreign divorces.
• As to the underlying recognition issue, the Court noted that the High Court had refused recognition under section 51(3) FLA 1986 because the wife had not been put on proper notice of the Kosovo proceedings—an approach consistent with authority and basic fairness in cross‑border family law adjudication.
• Conclusion: The Court refused to extend time and dismissed the application. The 22 January 2020 decree nisi and refusal to recognise the Kosovo divorce remain in place. Ancillary relief is ready to proceed before the Master; no decree absolute has yet been granted.

Detailed Analysis

Procedural posture and salient chronology

• Marriage in Kosovo (2003), subsequent cohabitation in Northern Ireland; two children born in Belfast (2004, 2010).
• Breakdown of marriage from approximately 2016 (husband’s account) or due to the husband’s unreasonable behaviour (wife’s account), alongside Northern Ireland non‑molestation and occupation orders against the husband.
• Parallel petitions: husband petitions in Kosovo (January 2019); wife petitions in Northern Ireland (May 2019). Issues of service and address accuracy loom large.
• Kosovo Basic Court granted divorce on 12 December 2019. The wife later appealed in Kosovo (24 December 2019), unsuccessfully (dismissed 9 November 2020).
• Northern Ireland decree nisi hearing before Huddleston J (22 January 2020) proceeded as undefended because the husband’s response was defective and no answer was filed within the required time. The judge refused to recognise the Kosovo divorce under section 51 and granted decree nisi.
• Husband’s notice of appeal not served until June–July 2024—over four years out of time. In the interim, the ancillary relief proceedings were protracted, with findings of litigation misconduct and committal for contempt against the husband.

Precedents and authorities cited

• Davis v Northern Ireland Carriers [1979] NI 19: The governing framework for extensions of time imposed by rules of court that contain a dispensing power. Lowry LCJ’s seven principles guided the Court’s discretion. The Court emphasised the paramount importance of accounting for delay and the basic premise that rules must be observed.
• Ratman v Cumarasamy [1965] 1 WLR 8: Quoted for the proposition that rules must prima facie be obeyed and a court needs material to justify extending time—otherwise a party in breach would enjoy an unqualified right to an extension, undermining orderly litigation.
• Family Law Act 1986, sections 51 and 53: Section 51(3) permits refusal to recognise an overseas divorce obtained without reasonable steps to give notice or without a reasonable opportunity to participate; section 53 provides related procedural powers in family proceedings.
• Family Proceedings Rules (NI) 1996, rr 2.11, 2.14: Set the time limits and requirements for acknowledgment of service and filing an answer, relevant to why the High Court treated the petition as undefended.
• Rules of the Court of Judicature (NI) 1980, Order 59 r 4(1)(c) (six‑week appeal period), Orders 59 rr 10(1), 15 and Order 3 r 5 (dispensing/extension powers).
• Foreign divorce recognition line of authority, relied on in submissions and accepted by the Court as consonant with section 51(3):
  • Liaw v Lee [2016] 1 FLR 533: Refusal to recognise a foreign divorce where the respondent had not been served or put on notice. Reinforces that effective service/notice is central to recognition.
  • Ivelva v Yates [2014] 2 FLR 1126: Discretion to refuse recognition should be informed by basic fairness; due process must be respected.
  • Olafisoye v Olafisoye [2011] 2 FLR 546: Recognition can be denied where a party effectively “cheated” the other by using an incorrect address to defeat service.
  • Kendall v Kendall (1977) 3 WLR 251: Comity does not compel recognition of a foreign decree that would likely be set aside if the foreign court were apprised of the true facts.

The Court’s legal reasoning

Treacy LJ applied the Davis framework rigorously to the husband’s four‑plus‑year delay:

• Whether the time is sped: The appellant did not seek an extension before the six‑week limit expired (4 March 2020). His appeal was only served in June 2024 and lodged in July 2024. This factor strongly weighed against him.
• Extent of default: The delay was described as “extraordinary.” The Court found the explanations inadequate, especially given the appellant’s repeated exposure to time‑limit issues in related proceedings and periods of legal representation.
• Effect on the opposite party: The wife was prejudiced by extensive delay and cost, particularly in ancillary relief where the proceedings were “extremely advanced” and the statutory charge would apply to her publicly funded representation. The Court accepted that the appeal appeared to be a tactic to delay and increase the wife’s costs.
• Merits/hearing on the merits: The point the husband sought to advance had, in substance, been considered by the High Court—namely whether to recognise the Kosovo divorce under section 51. There was no denial of a merits determination justifying an extension.
• Point of substance and general significance: The Court rejected the argument that a general point on recognition of overseas divorces arose. The issue was fact‑specific—whether, on these facts, the High Court correctly applied section 51(3). No point of wider legal principle was identified.
• Rules of court must be observed: Echoing Ratman v Cumarasamy, the Court stressed that absent material justifying discretion, time limits cannot be relaxed or they cease to serve their purpose.

The Court was also influenced by the appellant’s litigation misconduct, including committal for contempt, and by his failure to take obvious procedural steps in 2019–2020 (e.g., filing an answer/cross‑petition; seeking a stay pending recognition; bringing timely recognition proceedings; putting in admissible evidence about service in Kosovo). By contrast, he did mount out‑of‑time appeals in other aspects of the case in 2022–2023, underscoring that he understood and could engage with time limits when it suited him.

Treatment of the Kosovo decree and section 51(3) FLA 1986

While the Court of Appeal did not re‑try recognition, its discussion confirms the High Court’s approach was orthodox and fair within section 51(3). The Kosovo proceedings involved the appointment of a temporary representative for the wife, with no evidence she had been properly served or notified; the husband provided an incorrect Northern Ireland address to the Kosovo court; and the English‑language correspondence from the wife’s solicitors querying service went unanswered.

On those facts, refusing recognition under section 51(3) aligns with the fairness‑driven authorities cited in submissions (Liaw v Lee; Ivelva v Yates; Olafisoye; Kendall). The Court of Appeal accepted the respondent’s case that the appellant had not taken reasonable steps to put her on notice of the foreign proceedings and that comity does not compel recognition of a decree obtained without basic procedural fairness. The fact that the Kosovo court later dismissed the wife’s appeal did not undermine the core section 51(3) concern about notice and opportunity to be heard on the original petition.

The Court noted minor clerical errors in the 2020 High Court order (reference to “1956” instead of “1986” and an omitted word), but these did not affect substance.

Why the extension failed notwithstanding asserted “merits”

Occasionally, Northern Ireland appellate courts will extend time where delay is short, adequately explained, and there is a clearly arguable, legally significant point. This was not such a case. The Court underscored that:

• Delay was extreme and unexplained in any acceptable sense.
• Prejudice to the respondent was concrete and ongoing.
• The “point” was not of general importance; it was confined to application of settled section 51(3) principles to case‑specific facts, already considered by the High Court.
• There was a real concern, borne out by procedural history, that the appeal was tactical—another strand in an overarching pattern of non‑compliance and delay.

Impact and implications

• Extensions of time in family appeals: Berisha sharply reaffirms the strict Davis approach in the family context. Substantial, unexplained delay—especially when coupled with litigation misconduct and evident prejudice—will almost invariably defeat an application to extend time.
• “Point of substance” must be real and general: The Court emphasised that a case‑specific argument dressed up as a general point does not suffice. Applicants should identify a genuinely arguable point of law of wider significance, or some conspicuous injustice not otherwise remediable.
• Recognition of foreign divorces: The judgment supports the continued centrality of section 51(3) FLA 1986’s fairness safeguards. Where notice and participation are deficient, Northern Ireland courts are entitled to refuse recognition—comity yields to due process. Practitioners should ensure documentary proof of effective service and notice in any foreign proceedings they seek to rely upon domestically.
• Case management and ancillary relief: Appeals launched years late can seriously prejudice ancillary relief, particularly where the legally aided spouse faces a statutory charge. Berisha signals that the Court will protect the integrity and progress of related financial remedy proceedings from dilatory tactics.
• Practical takeaway for cross‑border divorce litigants: If foreign proceedings are underway or concluded, parties should promptly:
  • Apply for a stay in Northern Ireland pending determination/recognition issues.
  • Seek recognition/refusal orders under the Family Law Act 1986 without delay (here, the High Court exercised section 51/53 powers at the decree nisi hearing).
  • Put forward full, admissible evidence on service, notice, habitual residence and domicile, and parallel proceedings.

Complex concepts simplified

• Decree nisi / decree absolute: In Northern Ireland divorce, a decree nisi is a provisional order that the marriage should be dissolved. It becomes final when made absolute (decree absolute). Here, decree absolute had not yet been granted.
• Ancillary relief: The financial remedy proceedings (property division, maintenance, etc.) that accompany divorce. In this case they were well advanced and delay increased costs and prejudice.
• Section 51(3) FLA 1986: Allows the court to refuse to recognise a foreign divorce if reasonable steps were not taken to give notice to the other spouse or if the other spouse was not given a reasonable opportunity to participate, considering the nature of the proceedings and all circumstances.
• Comity: Mutual respect between legal systems. It encourages recognition of foreign judgments, but does not require recognition where basic fairness (e.g., proper notice) is lacking.
• Extension of time (Davis principles): A discretionary remedy. Courts weigh the length and explanation for delay, prejudice, whether there was or will be a hearing on the merits, whether there is a genuine legal point of substance of general importance, and the overarching need to observe rules of court.
• Statutory charge: Where a legally aided party recovers or preserves property, the Legal Services Agency may recoup its outlay from that property. Prolonged litigation can therefore increase the burden on a legally aided spouse’s eventual recovery.

Conclusion

Berisha v Berisha is a clear reassertion of orthodox appellate discipline in Northern Ireland. The Court of Appeal applied Davis with full rigour to refuse an exceptionally late appeal where delay was unexplained, prejudice was real, misconduct was established, and the supposed “point of substance” was fact‑bound rather than jurisprudentially significant. The immediate effect is that the High Court’s refusal to recognise the Kosovo divorce under section 51(3) and the decree nisi remain undisturbed, paving the way for ancillary relief to proceed.

Beyond its facts, the case sends two strong messages: first, litigants must respect time limits and cannot expect indulgence absent compelling justification; second, in recognition cases, comity will yield to fairness—overseas divorces procured without proper notice or opportunity to be heard will not be recognised. Together, these principles promote procedural integrity and substantive justice in an area—marital status and financial consequences—where delay and unfairness can have profound human and economic costs.