Berisha v Berisha

Factual and Procedural Background

This is an appeal against an order made on 22 January 2020 by Judge Huddleston granting a Decree Nisi in proceedings brought in this jurisdiction and refusing to recognise a divorce granted in a foreign State pursuant to the court's powers under the Family Law Act 1986. The Appellant seeks to set aside that order.

The Appellant and Respondent were married in 2003 in The City. The Appellant regards himself as habitually resident in The State and the Respondent relocated to The State after the marriage; the parties lived together in The City from October 2003 and had two children born in The City.

Both parties initiated divorce proceedings after separation. The Appellant issued proceedings in the foreign State in January 2019; the Respondent issued proceedings in this jurisdiction in May 2019. A foreign court dissolved the marriage in December 2019. The Respondent appealed that foreign decision in late December 2019; the foreign Court of Appeal dismissed that appeal in November 2020.

In Northern Ireland proceedings the Respondent's petition was served and the Appellant's acknowledgement of service was filed late. At the Decree Nisi hearing on 22 January 2020 Judge Huddleston proceeded to make the decree nisi and, exercising his statutory discretion under sections of the Family Law Act 1986, refused to recognise the foreign divorce on the basis that the Respondent had not been put on notice of the foreign proceedings and that the authenticity and fairness of the foreign process were in doubt. The Appellant did not appeal within the six-week time limit and only filed a notice of appeal in mid-2024. The central procedural question on appeal is whether an extension of time to bring the appeal should be granted.

Legal Issues Presented

1. Whether the Court of Appeal should exercise its discretion to extend the time for lodging a notice of appeal that was filed more than four years after the judgment appealed against.
2. Whether, on the facts of this case, the Decision of Judge Huddleston to refuse recognition of the foreign divorce pursuant to section 51 of the Family Law Act 1986 was open to challenge at this stage.

Arguments of the Parties

Appellant's Arguments

• The Appellant argued that he could not reasonably have been expected to lodge an earlier challenge and that lack of legal representation in the lower court justified extending time. He asserted there had been no hearing on the merits in respect of the foreign divorce recognition point and that there was a legal point of substance concerning the validity of the foreign divorce which could not have been advanced earlier.
• The Appellant relied on the contention that the parties had been divorced in the foreign State and that the Northern Ireland proceedings therefore could not appropriately proceed without recognising that divorce.

Respondent's Arguments

• The Respondent argued the notice of appeal was extraordinarily out of time (filed in 2024 against a decision of January 2020) and that no satisfactory explanation was provided for the delay.
• She submitted there had been serious litigation misconduct by the Appellant during the family proceedings and that the Appellant had been represented at material times, undermining the lack-of-representation explanation.
• The Respondent maintained there was evidence before Judge Huddleston that she had not been given proper notice of the foreign proceedings, that an incorrect address had been supplied to the foreign court, and that the foreign process lacked fair opportunity for her to participate — such circumstances falling squarely within the statutory ground authorising refusal of recognition under section 51(3) of the Family Law Act 1986.
• The Respondent submitted there was no substantive general legal point; the appeal sought to re-litigate whether Judge Huddleston was correct to refuse recognition on the specific facts of this case, not to establish a wider principle about recognition of overseas divorces.
• The Respondent contended she would suffer irreparable prejudice if time were extended, given the prolonged ancillary relief proceedings, the expense she has incurred, and the advanced stage of those proceedings.

Table of Precedents Cited

Court's Reasoning and Analysis

The Court of Appeal began by identifying the narrow procedural issue: whether to exercise the discretionary power to extend time for an appeal brought more than four years late. The relevant procedural rule requires a notice of appeal to be served within six weeks; the court has a discretionary power to extend time under the Rules of Court. The court applied the established seven-part Davis test for exercising that discretion.

The court set out the facts relevant to the exercise of discretion: the decree nisi was made on 22 January 2020; the Appellant had six weeks (until 4 March 2020) to appeal but did not serve a notice of appeal until June 2024 (or lodge a notice in May/July 2024 under varying filings). The court described this as "extraordinary delay."

The court then examined the Davis factors as applied to the chronology and conduct in this case:

• Whether the time is sped: the time was not sped; no application to extend time was made before expiry.
• Extent of default: there was significant default — more than four years without a satisfactory explanation.
• Effect on the opposite party: the Respondent would suffer prejudice; ancillary relief proceedings are advanced and protracted, costs have been incurred, and additional delay would cause further prejudice and expense.
• Whether a hearing on the merits would be denied: the court noted that the Appellant had opportunities earlier to raise the substance of his challenge (for example by filing answers, cross-petitions or applying to recognise the foreign divorce), and that the matters he now seeks to raise were heard by Judge Huddleston at the Decree Nisi hearing.
• Whether there is a point of substance that could not otherwise be advanced: the court did not accept that the Appellant had a point of general legal substance; his challenge came down to contesting Judge Huddleston's factual and discretionary assessment on the specific circumstances.
• General significance: the court accepted the issue was not of general significance but specific to the case.
• Observation of rules: the court reiterated the public importance of observing rules of court and that material must exist to justify extending time (citing the authority that rules must prima facie be obeyed).

The court also took account of the Appellant's record of litigation misconduct, his repeated failures to engage properly in directions and ancillary proceedings, his prior unsuccessful attempts to obtain extensions in other related appeals, and the fact he had periods of legal representation during which no timely appeal or extension application was lodged. The court rejected the principal ground advanced by the Appellant—lack of legal representation—on the basis that on the facts he had been represented at significant times and had other assistance.

The Respondent's evidence and submissions about lack of service in the foreign proceedings, incorrect address given to the foreign court, and the fairness of the foreign process were considered. However, the Court's disposition turned on the inordinate delay and lack of satisfactory explanation rather than on reaching a definitive conclusion on all the underlying cross-jurisdictional factual points. Taking the Davis factors together the court concluded that extension of time should not be granted.

Holding and Implications

Holding: The Court refused to exercise its discretion to extend time and dismissed the late appeal. The court therefore upheld the decision that the application for recognition of the foreign divorce should not be entertained on this late appeal.

Core Ruling: EXTENSION OF TIME REFUSED; APPEAL DISMISSED

Implications:

• Direct effect: The Decree Nisi made on 22 January 2020 remains in place and the Appellant's late challenge to that order is dismissed. The ancillary relief proceedings remain in course and pending in accordance with the earlier orders; a Decree Absolute has not yet been issued and the ancillary relief hearing was ready to proceed.
• No new legal principle or general precedent was established by this decision beyond application of the established Davis factors for extension of time; the decision turns on the particular facts, including the Appellant's unexplained extraordinary delay and litigation history.