A wife has been granted the right to pursue a divorce in the UK even though she and her husband had been effectively divorced in Ghana according to local customs.

The case involved a couple who had been married in 2017 in Ghana. They had a marriage certificate.

Prior to the marriage, the wife had been an overstayer in the UK. Both partners had been habitually resident in the UK up to and including 2019.

The dispute centered on whether they had been divorced by local custom. The husband’s case was that they had separated in December 2018, divorced by way of local custom in Ghana on 25 August 2019 and had it registered in Ghana, and that the authorities had signed documents confirming the authenticity of the divorce.

The wife disputed this.

The husband alleged that he gave the wife the Ghanaian divorce documents on 19 March 2020 and told her he would notify the Home Office of their change in marital status, but she asked him not to.

She filed a petition for divorce in the UK on 24 March 2020 and the husband responded stating that they had already been divorced in Ghana.

The wife alleged that she first saw those divorce documents in October 2020 and denied being party to any divorce proceedings. An expert gave evidence as to the process and validity of marriage and divorce by local custom.

The Family Court granted the wife’s petition to file for divorce in the UK.

It acknowledged that there was no reason to question the signed letters from the Ghanaian authorities confirming the authenticity of the divorce documents.

However, because both partners had been habitually resident in the UK 12 months prior to the date of divorce in Ghana, the English court could not recognise that customary divorce and so by English law the two remained married.

The wife was therefore entitled to pursue a petition for divorce in the English courts.

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Case Citations: Botwe v Brifa, Family Division, [2021] EWHC 2307 (Fam) – Cobb J

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