K v A
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 17 November 2014 |
| Neutral Citation | [2014] EWHC 3850 (Fam) |
| Date | 17 November 2014 |
| Court | Family Division |
| Docket Number | Case No: OX13D00310 |
[2014] EWHC 3850 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mrs Justice Roberts
Case No: OX13D00310
Edward Kirkwood (instructed by Churchers Bolitho Way) for the Petitioner
The Respondent in person but not represented at the hearing
Hearing dates: 24th October 2014
This is a preliminary issue hearing which arises in the context of ongoing divorce proceedings between a petitioner wife and a respondent husband. In circumstances which I shall explain, the issue which I have to resolve is whether the purported marriage between the parties celebrated in Pakistan in 2005 should be recognised in this jurisdiction as a valid and subsisting marriage which would entitle the petitioner to proceed with her current petition seeking its dissolution, and her related application for various financial remedy orders flowing therefrom.
In terms of the jurisdictional basis for the determination which I am being asked to make, whilst not framed as such in terms of a formal application, the relief sought by the petitioner is a declaration pursuant to section 55(1)(a) and (b) of the Family Law Act 1986 to the effect that the marriage was at its inception a valid marriage and that it subsisted as such on 18 March 2013, being the date upon which her current petition was issued.
The matter comes before the court by means of a slightly unusual route.
The parties are parents to two children, who are now respectively aged 7 and 4 years old. Prior to the demise of their relationship, the family home was in Oxford, which is where each of the parties continues to live in separate households. The petitioner and the respondent share the care of the two children pursuant to an order made in the Oxford County Court by His Honour Judge Hughes in August 2013. That order was made in the context of long-running and protracted proceedings brought under the Children Act 1989. One of the issues which surfaced during the course of those proceedings was the petitioner's application for permission to take the two children to Pakistan for the purposes of a visit to family members living in that country. In the context of their removal from the jurisdiction of England and Wales, the court was invited to consider the protection available to the respondent father in securing their return in the event that it might have proved necessary to engage the co-operation of the Pakistani courts.
For these purposes, the court directed that a single joint expert should be appointed to prepare a report dealing with the respondent's ability to recover the children from Pakistan in the event of the petitioner's unwillingness to return them at the conclusion of any period in respect of which the English court might grant her limited permission to remove them. By this stage of the proceedings, the children were represented by a Guardian and it was she who had carriage of the instructions which were delivered to the single joint expert, Professor Martin Lau, a barrister and Professor in South Asian Law at the Law Department of the School of Oriental and African Studies ('SOAS') at the University of London.
To set the issue in its proper context, I need at this point to say something about the parties. The petitioner is a Sunni Muslim, whereas the respondent is a member of the Ahmahdi faith. At the time of the celebration of their marriage in Lahore on 21 September 2005, both parties were resident and, it appears, domiciled in Pakistan. The petitioner was living with her parents in Lahore and the husband had also provided a residential address in that city where he was working as a businessman.
The Ahmahdi Muslim community is a dynamic and fast growing international movement within Islam. Founded in 1889, it spans over two hundred countries with many millions of members. Although Ahmahdis share many common beliefs with mainstream Sunni Muslims, there are a number of doctrinal divergencies between them. For the purposes of this judgment, it is not necessary for me to set them out here. The Ahmahdi community in Pakistan (of whom there are some 3 million) was formerly regarded as Muslim until a change in local domestic law in 1974. From that date onwards, Pakistan's legislative body adopted a law declaring Ahmahdis to be non-Muslims. They were no longer entitled to call themselves Muslim without attracting criminal sanctions, or to profess the Islamic creed publicly, or to call their places of worship mosques. Of particular significance for these purposes is the fact that they cannot use standard procedures under Muslim law to marry and, in particular, cannot marry in Muslim mosques. Of fundamental significance to the issue before me is the fact that under Pakistani law, there is doubt as to whether a marriage between a Sunni Muslim and a non-Muslim would be regarded as legally valid.
The implications of a Nikah marriage between two members of the Ahmahdi community in Pakistan were considered at some length by Parker J in R v M [2011] EWHC 2132 (Fam). The issue for the court in that case was whether, under the rules of private international law, the court should or must recognise as effecting a valid marriage a wedding ceremony celebrated in Islamabad, Pakistan in 2007. In declaring itself satisfied that the marriage in that case had been informally but, importantly, recognised for all purposes in the Pakistani State and was thus entitled to formal recognition in this jurisdiction, Parker J set out at some length the effect of the expert evidence which she heard from Professor Menski, Professor of Law at SOAS and from Dr Ayaz OBE, chair of the English Ahmahdi Association.
In that case, it was accepted that there was no issue with regard to form and capacity. The respondent's case in R v M had been that the marriage was not valid in either Pakistan or England unless and until it had been registered. Without such registration, on his case, it had effect only at a religious level within the Ahmahdi community.
Disposing of that argument and highlighting the issues which can arise in this context, Parker J said this:
'17. I deal, firstly, with the assertion that it was necessary to register this marriage, or possible to register it, in England. So far as English law is concerned, there is no registration procedure in respect of a foreign marriage. If a domestic marriage is not recognised in this jurisdiction, then these parties must, if they wish to have a validly recognised marriage, undergo a civil or religious ceremony in this country which takes place in accordance with the Marriage Acts. There are indeed some marriages regarded as binding at a cultural and religious level in this jurisdiction which this jurisdiction does not recognise, in particular, religious marriages which take place in the Muslim community, because a Nikah marriage here is, as indeed are Hindu and other marriages, not recognised unless it takes place in a venue which is registered. The effect of non-recognition is graphically illustrated by the decision of Sir Christopher Sumner in AAA v ASH [2009] EWHC 636 (Fam). The consequences of non-recognition are very serious for the parties. Children are illegitimate, which is a matter of some consequence because of the provisions for acquisition of parental responsibility by a father. There is no right to divorce unless the marriage is recognised here; thus these proceedings. If there is no divorce in these proceedings, there is no consequential right to claim any form of financial provision pursuant to the Matrimonial Causes Act 1973, and any children can only be supported pursuant to Schedule 1 of the Children Act 1989. AAA v ASH concerned a father whose child had been removed to the Netherlands. He had registered the child's birth in England as a married father relying on a Nikah certificate, there being no necessity for the mother to consent to this. The question was: had this birth been validly registered by the father as a married father, as opposed to pursuant to section 4 of the Children Act 1989, as amended, as an unmarried father in English law, which requires the mother's agreement to register. Sir Christopher Sumner held that the birth had been invalidly registered and that the father did not have parental responsibility.'
Having referred to the well known rule of private international law explained by Dicey, Morris & Collins in the (then) current edition the Conflicts Of Laws which stipulates that a marriage will be considered to be formally valid when (and only when) certain conditions as to the form of celebration is complied with (in R v M, 'if the marriage is celebrated in accordance with the form required or (semble) recognised as sufficient by the law of the country where the marriage was celebrated'), Parker J went on to consider the expert evidence she had received from Professor Menski. At paragraph 21, she records that evidence under these eight points:-
'(1) Since Ahmahdis were declared non-Muslim in 1974 they cannot use standard procedures under Muslim law to marry and, in particular, cannot marry in Muslim mosques. They are not allowed to describe their own places of worship as mosques.
(2) In the personal law of Pakistan the religious ceremony creates the civil status, providing that it is based on a valid oral contract of marriage. There is no requirement, as in England, for a marriage to be celebrated in a registered venue, whether a place of worship or not, and for the registration to take place at the time of the ceremony.
(3) There are a number of religious minorities in Pakistan who marry pursuant to their religious customs, for example, Hindus, Jains, Sikhs, Christians and Buddhists. In addition, tribal groups have their own ceremonies. These marriages are treated as valid...
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Hayatleh v Modfy
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