一对来自非洲西部加纳共和国的夫妻，丈夫原本已经在英国生活多年，而妻子则是在2012年来到英国，最初是持有合法访问签证，后来就一直逾期滞留在英国。
这对夫妻并不是一起来到英国的，而且他们在来英国前，也还没有结婚。
他们是在2017年3月，一起回到加纳，并在当地举办了传统部落习俗婚礼。
在加纳合法结婚后，他们又一起回到了英国生活（注：这不是个移民案件，所以没有探究妻子后来是如何合法生活在英国的，当事人的移民身份并不是这个故事的核心议题）。
2020年3月，妻子向英国法院申请了离婚，声称要离婚是因为“对方的行为举止不合理”。
不过，丈夫在收到妻子的离婚申请通知时，回复说：双方早就在加纳离过婚了！
他补充：该离婚仪式是符合加纳当地的部落习俗，并且也在亲友的见证下完成了，已经在2019年8月，在当地完成了离婚登记。
丈夫的意思是说，既然双方早已离婚，妻子这时又去申请离婚，根本就是无效的。
同时，丈夫也对于妻子所提出认为他的“行为举止不合理”，提出了反驳。
不过，妻子不认同丈夫的说法，认为双方的合法婚姻关系仍然存在（所以她才会向英国法庭申请离婚）。
于是，妻子进一步向家事法庭，依据《家庭法》第51和55条（Family Law Act 1986），向法庭申请“双方婚姻关系仍有效”的声明。
→ 家事法庭如何看待这个问题？
对于案件中当事双方的“婚姻”是否仍然有效、仍然存在，法官先从《家庭法》第46和第54条著手。
法官认为，这涉及到两个重点问题：
当初的“离婚”是如何取得的？
该“离婚”是通过什么样的程序，是否有经由“司法程序”取得？或者是否通过“得以构成”离婚生效的“必要”程序/因素而取得？
亦或是说，有没有其他的程序（Other Proceedings）得以证明一个“离婚”是有效的？
如果是前者，就要依据《家庭法》第46(1)条；如果是后者，则要依据第46(2)条。
白话一点说明：回到以上的案件来看，首先，由于双方当初是依照“加纳习俗”离婚的，所以很明确的，双方没有经过“司法”程序。
那么，双方的离婚是否有经过“必要”程序呢？
法官发现，虽然丈夫强调他们的离婚是有在当地“登记”（Registration）的，但这个“登记”并不是当地“习俗离婚”的必要程序；就是说，根据当地的法律，有登记或者没有登记，都不影响该习俗离婚是否成立，并非关键性的决定因素。
既然如此，法官就需要进一步去看，双方在加纳的“离婚”，是否符合《家庭法》第46(2)条的要求（因为，这代表双方的“离婚”是属于上面列出的第2点）。
→《家庭法》第46(2)条？
根据《家庭法》第46(2)条，英国法庭是否“承认”双方离婚的有效性，必须符合主要两个重点：
该“离婚”在该国是否有效、是否被当地法律承认（例如故事中双方在加纳的离婚，在加纳当地是否能够被承认，是有效的离婚）？
如果说该“离婚”在当地确实是有效的，那么，双方的“婚姻”是否“定居”于当地（Domiciled）？
于是，家事法庭的法官基于以上，进一步对于当事人的案件做出判断和裁决。
法官同意丈夫的说法，认为双方当初的离婚，确实根据加纳当地的法律，在当地是有效的、可以被承认的；
可是呢，法官也指出，对于妻子和丈夫双方，他们的“婚姻”期间，定居地是在英国（Domiciled in the UK）而非加纳。
所以，法官承认该“离婚”是有效的，但却无法被英国法庭所承认（英国定居地不在加纳）。
这代表，双方的婚姻截至现在，依旧是（被英国法庭视为）有效的；因此，妻子是有权按照原来的计划，向英国法庭申请离婚的。
丽莎结语：
今天这则案件，再次点出了有关“跨国离婚”案件的复杂性。
当事人或许认为自己已经在一个国家成功离婚了，却并不代表另一个国家也承认这个离婚。
延伸来说，虽然我们不知道，上面案件中的妻子，为何还想在英国提出离婚，这或许是和财产的分配有关，又或许是其他原因。
比如说，如果双方的财产大部份或者都在英国，双方也定居在英国的话，那么离婚自然是在英国申请会最有效率。
如此一来，英国法庭做出的判决，基本能够获得最好的执行（因为财产在英国，法庭的判决能够被很有效地执行）。
当然了，离婚的问题也不是三言两语就能一概而论的，必须根据双方的情况，去进一步给予建议。
如果您对于离婚方面的问题，针对个人情况，有任何不清楚或者需要建议的地方，都可以进一步咨询丽莎律师行。
丽莎的专业诉讼和家庭法团队，将能针对不同的个别情况，给予最符合您需求的法律建议，直至后续的委托和处理。
任何英国税务方面的问题，也可以联系咨询丽莎会计行。
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