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There’s been an interesting case rumbling through the courts recently that considers whether a foreign diplomat can be protected by diplomatic immunity from divorce proceedings issued by a spouse in this country. A judgment has just been produced by the Court of Appeal. We thought we would have a closer look.

In this case , the wife has filed an application with the court for consideration of financial relief after an overseas divorce, which is a broadly similar process to that which those divorcing in England and Wales go through in court, but technically more limited in its outcome.

The husband is a member of a wealthy Saudi Arabian family, and the wife, his second, is a US national with permanent leave to remain in the UK. They have a teenage daughter together. They married in Dubai in 2001, separated in 2013, and divorced in Jeddah in 2014, by which stage the husband had already married again polygamously in Lebanon. Part of the wife’s case is that the family has always been based in London. She continues to live in London with the daughter, who is being educated in Surrey.

The husband’s claim to diplomatic immunity arises from his 2014 appointment by the Governor-General of St Lucia as the Permanent Representative of St Lucia to the International Maritime Organisation in London. The husband had no prior connection to St Lucia at all. Nevertheless, he was appointed, and as such his name appears on the Foreign & Commonwealth Office’s diplomatic register.

The first court hearing this case decided, effectively, that the appointment was a construct designed to defeat the wife’s claims. It found that the husband had not undertaken any duties at all in the role. The judge said, “H has sought and obtained a diplomatic appointment with the sole intention of defeating W’s claims consequent on the breakdown of their marriage. H has not, in any real sense, taken up his appointment, nor has he discharged any responsibilities in connection with it. It is an entirely artificial construct. I draw back from describing it as a ‘sham’, mindful of the forensic precision required to support such a conclusion.”

The Court of Appeal disagreed with this characterisation, on the basis that the law does not support a functional approach: it does not matter whether the duties have been carried out, it is the position that counts. The Court also determined that the position does carry with it immunity from civil suit, which technically includes family law matters. There is no incompatibility with human rights law (including ECHR Art 6, the right to a fair trial) because diplomatic immunity has been held to be in line with, and indeed a fundamental tenet of, international law. In fact, the Court of Appeal held that the lower court had been wrong to hold that the husband could not in principle use diplomatic immunity to strike out the wife’s financial claims on divorce.

However, there was more to the case than principle.

Under the Vienna Convention, the set of laws which regulate diplomatic immunity, “Except insofar as additional privileges and immunities may be granted by the receiving State, a diplomatic agent who is a national of or permanently resident in that State shall enjoy only immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of his functions.” So the next question was whether the husband was permanently resident in England and Wales.

In this respect, the Court of Appeal did not disagree with the decision of the lower court that the husband was permanently resident here. Over the course of 35 years, three marriages and five children, and despite criss-crossing the world regularly in his private jet, he had always based his family here and educated his children here. The lower court had found this to be a magnetic factor. The Court of Appeal declined to interfere with that exercise of discretion.

The judgment is very interesting and very carefully crafted, showing that the judges were clearly aware that they were dealing here with big questions far beyond ordinary divorce law. Diplomatic immunity is a tricky concept, which has been around for thousands of years in one form or another to facilitate state officers in the function of their duties when on missions abroad, but which is consistently abused by some diplomats to enable them to escape everything from parking tickets to prosecution for serious crimes. Nevertheless, it is a global issue, and governments around the world will have been watching the workings of the English court in this case.

The court struck a balance in the case between respecting diplomatic immunity and determining that under the particular rules applicable in the husband’s case, he was not entitled to it as protection from a family law claim because of his permanent residence here. The wife’s claim will proceed, unless of course the Supreme Court decide to hear the husband’s likely appeal – although the idea of another big money overseas divorce question taking up their time is not likely to be attractive, the construction of diplomatic immunity is something that comes up rarely and would benefit from some further guidance, so you never know.

If you’ve got any questions about financial relief after a divorce overseas, diplomatic immunity, or any other aspect of family law, please do give us a call on 01223 443333 and make an appointment to speak to Tricia, Adam, Gail, Sue or Simon.

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