Abbassi v Abbassi
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THORPE,LADY JUSTICE SMITH,LADY JUSTICE HALLETT |
| Judgment Date | 07 March 2006 |
| Neutral Citation | [2006] EWCA Civ 355 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | B4/2005/0881 |
| Date | 07 March 2006 |
[2006] EWCA Civ 355
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM PRINCIPAL REGISTRY
THE FAMILY DIVISION
(MR JUSTICE RODERIC WOOD)
Royal Courts of Justice
Strand
London, WC2
Lord Justice Thorpe
Lady Justice Smith
Lady Justice Hallett
B4/2005/0881
MISS CHOUDHURY (instructed by H C L Hanne & Co, St John's Chambers, LONDON, SW11 1TN) appeared on behalf of the Appellant.
MS M GALLAGHER & MR JOSHI (instructed by Messrs Atteys & Treasury Solicitor) appeared on behalf of the Respondent.
Judgement
The parties to this appeal married in 1988 and within this jurisdiction the wife presented a petition for dissolution which resulted in a decree nisi of divorce which was not made absolute for the simple reason that the husband then asserted that the marriage had been validly dissolved by talak pronounced in Pakistan on 8 July 1999, an assertion which if correct in fact and law and which if recognised under the provisions of the Family Law Act 1986, would have had the consequence of rendering the last two or three years of the parties' cohabitation non-marital. The husband sought a declaration pursuant to section 55(1) (D) of the Family Law Act 1986, a declaration of the validity of the foreign decree.
That application was strenuously resisted by the wife, who asserted that there had been no such divorce in the summer of 1999 and further that the documentation relied on by the husband in support of his application was bogus, forged or otherwise improperly procured. Directions were of course given for the trial of the issue and the case was listed before Wood J with a time estimate of four days commencing on 11 April 2005. The Attorney General had intervened in the proceedings and expert opinion had been sought, two of the experts being instructed by the Attorney, the other jointly instructed by the parties. In very broad summary, the experts all noted irregularity and inconsistency in the documentation but were generally of the view that the asserted talak divorce would be recognised as valid in Pakistan.
Wood J had the opportunity of reading the considerable case papers over the preceding weekend and at the outside of the trial he informed the parties of his preliminary view that it would be altogether more sensible for the issue as to the validity of the talak divorce to be determined by the court in Islamabad. The husband's counsel, in a way that the judge was to describe as adventitious, accepted or embraced the judge's suggestion with enthusiasm and applied for the adjournment. That course was opposed by both the wife's counsel and the Attorney's counsel and the judge accordingly delivered a relatively brief judgment in which he reasoned his conclusion to follow his first thought and to defer to the Pakistani court the determination of what was essentially a Pakistani issue. The wife's counsel, Miss Choudhury, sought permission to appeal and the application was supported by Miss Gallagher for the Attorney General. The judge refused the application and accordingly on 25 April an application for permission to appeal was lodged with this court. It was supported by a skeleton argument settled by Miss Choudhury on 22 April 2005.
I am not clear why the application has taken so long to reach the lists. I have a recollection of having made a direction for the application to be listed for an oral hearing on notice with appeal to follow if permission granted. Effectively, or perhaps I should say implicitly, we have granted permission since from the outset, we have treated this hearing as though it were the hearing of an appeal.
Miss Choudhury, relatively early in the course of her submissions, conceded that it was not an error of law on the part of the judge to impose the order which he had; that is to say, she accepted that there was no legal provision that prevented the judge from taking that course. Although Miss Gallagher's skeleton asserted that the judge had been wrong in law so to order, she too early in her submissions conceded that that point could not be sustained. Accordingly, the submission for the appellant, supported by the submission for the Attorney, is the simple submission that the judge erred in the exercise of his discretion in imposing the course which he did.
It is I think useful at this stage to look in some detail at the order that followed the judgment. The order was preceded by recitals and undertakings. The important undertaking given by the husband was first within 28 days to issue and serve an appropriate application to an appropriate court in Pakistan for a declaration that the talak divorce is a valid divorce under Pakistan law: secondly, to have determined in Pakistan the following points: namely 1) whether there was a valid divorce in Pakistan, 2) whether the formalities for a valid divorce were complied with, 3) whether any documents adduced in support of a valid divorce are in themselves valid and 4) whether there was required to be any notice of the divorce given to the wife before or after the alleged divorce and if so, whether and when this was given.
The husband's further undertaking was to pursue expeditiously such an application. The order then records a concession made by the husband, relatively close to the trial, to the effect that he had financial responsibility for the wife under the provisions of the Matrimonial Causes Act 1973 should his application under the 1986 Act fail; alternatively, under part 3 of the Matrimonial and Family Proceedings Act 1984 should his application under the 1986 Act succeed. On the basis of that concession, the judge made a tight order that the husband comply with earlier directions made in the ancillary relief proceedings; secondly, file and serve all the documents required by his form E; and thirdly, file and serve answers to the outstanding questionnaire; all that to be done within a tight timetable and to all of that a penal notice was attached. The remaining provisions of the order required the husband to file with the court a copy of the application to be issued in Pakistan and finally the order provided that if there were any difficulties in issuing...
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H v H (Queen's Proctor intervening) (validity of Japanese divorce)
...Eroglu v Eroglu [1994] FCR 525 applied. Accordingly, the petition would be dismissed. Cases referred to in judgmentAbbassi v Abbassi[2006] EWCA Civ 355, [2006] 1 FCR 648, [2006] 2 FLR Bell v Kennedy (1868) LR 1 Sc & Div 307, HL. Boldrini v Boldrini and Martini [1932] P 9, [1931] All ER Rep ......