FREE CHAPTER from ‘A Practical Guide to ‘Stranded Spouses’ in Family Law’ by Mani Singh Basi

CHAPTER TWO – DEFINING STRANDED SPOUSE


What is meant by ‘Stranded Spouse’?

The term ‘stranded spouse’ is one that has been utilised in case law for many decades and it will be a term that will be used throughout this book. Notwithstanding this, it is acknowledged that are variations to the term that have been enshrined in case law and now the Family Procedure Rules. Despite this, the term ‘stranded spouse’ has a history to it and is commonly utilised when trying to raise the awareness of this topic and for this reason, the term will be utilised.

If the term ‘stranded spouse’ is taken literally and in reverse, the term ‘spouse’ infers that, a couple are married and therefore there is a wife or husband in existence. In practice and throughout the duration of the case the marriage can end. Further, for these types of cases to exist, the couple do not necessarily have to be married, albeit it is a common feature.

The most important feature of the term ‘stranded spouse’ is that of what is meant by ‘stranded’. In short, this is a wide term. In Re A (Children)1 Lord Justice Moylan stated the following

I agree … that the manner in which a spouse can act in order to seek to prevent the other spouse returning to the UK can take many forms. In my view, it is not helpful to seek to assess what has happened in any case by reference to any notional concept of the “classic” case. As set out above, stranding is a broad concept and can include any action taken by a spouse which puts obstacles in the way of the other spouse being able to return to the UK. In some respects, it matters not whether the attempt is successful or not’

Accordingly, the existence of ‘stranded spouse’ cases were alive but each case had to be considered in light of the particular facts. It is a broad concept and as a consequence of it being broad, there can be complicated features in existence and in turn, complications that the courts must grapple with. Further and as a result of the term being broad, it is common feature of family law cases that allegations in exist relating to ‘various tricks and devices’2 being utilised in order to strand a spouse.


Stranding as a form of Domestic Abuse

In recent times, the impact of domestic abuse has been the focus of a significant amount of case law. In particular, there has been a growing emphasis on raising the awareness of what can constitute domestic abuse and the impact that various behaviours can have on victims as well as the subject children, both directly and indirectly. For example, as Mr Justice Cobb outlined in B-B, Re (Domestic Abuse: Fact-Finding)3:

an abusive relationship is invariably a complex one in which the abused partner often becomes caught up in the whorl of abuse, losing objective sense of what was/is acceptable and unacceptable in a relationship. Like many abused partners, the mother in this case became immunised to the emotional volatility of the damaging relationship which she saw as normal and acceptable; like many abused partners, she clung to what she knew’.

Issues in respect of domestic abuse are governed by the Family Procedure Rules 2010 [‘FPR’]. In particular, PD12J is the relevant practice direction which applies to any family proceedings in the Family Court or the High Court4. A development of PD12J is that it recognises that the practice of stranding a spouse as domestic abuse. Paragraph 2B of PD12J states the following:

2B. For the avoidance of doubt, it should be noted that “domestic abuse” includes, but is not limited to, forced marriage, honour-based violence, dowry-related abuse and transnational marriage abandonment”

Paragraph 3 goes on to define ‘abandonment’ as follows:

abandonment refers to the practice whereby a husband, in England and Wales, deliberately abandons or “strands” his foreign national wife abroad, usually without financial resources, in order to prevent her from asserting matrimonial and/or residence rights and/or rights in relation to childcare in England and Wales. It may involve children who are either abandoned with, or separated from, their mother”.

As such, PD12J helpfully encompasses what can constitute ‘abandonment’ and rightly points out that the practice may involve children who are either abandoned with or separated from their mother. Mr Justice Peel in Re S (A Child)5 helpfully acknowledged when considering the practice direction that:

It is clear from the Practice Direction that the words abandonment and stranding are not terms of art and that they are not intended to be applied in a formulaic manner. This is because there are a number of ways in which a spouse might be said to have been abandoned or stranded abroad or in which the other spouse might have sought to achieve this”.

Accordingly, it is not so much the label which is important, it is the form of stranding / abandonment and the consequences that this may have on the welfare of the victim and the children which is the key issue for the courts. Further, the reason as to how the stranding occurred and perhaps the purpose is also important because this goes towards the question of harm and risk.

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1[2019] EWHC Civ 74, paragraph 78

2Holman J in Akhtar v Ayoub [2013] EWHC 3840 (Fam), para 2.

3(Rev1) [2022] EWHC 108 (Fam), para 6

4FPR PD12J, para 1

5[2022] 2 FLR 792, para 11