Assim Balal Hussain v Nazia Parveen
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Arbuthnot |
| Judgment Date | 03 September 2021 |
| Neutral Citation | [2021] EWFC 73 |
| Docket Number | Case No: BD18D03258 |
| Year | 2021 |
| Court | Family Court |
and
[2021] EWFC 73
Mrs Justice Arbuthnot
Case No: BD18D03258
IN THE FAMILY COURT
SITTING AT LEEDS
Sitting Remotely
The Petitioner appeared in person
Mr Karim Andani (of Ashwells Law LLP) for the Respondent
Mr Simon P G Murray (instructed by Government Legal Department) for the Intervenor
Hearing date: 13 th July 2021; Draft Judgment: 10 th August 2021
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is a hearing listed to decide two preliminary and potentially dispositive issues in relation to a talaq, or Islamic divorce. The first issue is whether this court has jurisdiction to decide the second issue. The second issue is more contentious than the first.
In summary of the second issue, the Petitioner contends that when he married the Respondent in Pakistan, she remained married to her ‘first’ husband as her divorce from him was transnational in nature and could not be recognised in this jurisdiction. Her marriage to the Petitioner therefore should be annulled. Mr Andani who assists the Respondent argues that her divorce from her ‘first’ husband should be recognised in this jurisdiction, it was not a transnational divorce as it took place in Pakistan.
In a very helpful detailed skeleton argument, having considered the authorities, the Queen's Proctor represented by counsel Mr Murray, agreed with the Petitioner's position.
It is important for the parties to bear in mind that the decision that this court is to take relates to the validity and recognition of the ‘first’ divorce in this jurisdiction. Whatever the decision, it does not affect the position of the divorce and indeed ‘second’ marriage in Pakistan.
Proceedings
On 18 th June 2021, this matter came before HHJ Kloss sitting in Leeds Family Court who made directions.
In his order, he said that two significant issues of law should be determined at a preliminary hearing to be dealt with (a) on submissions and (b) on the basis of the factual matrix as asserted by the Respondent in her witness evidence.
For the avoidance of doubt, HHJ Kloss set out the issues of law as follows—
“(a) On the assumption that the Respondent's ‘first’ divorce was valid in Pakistan and that she was therefore free to marry the Petitioner in Pakistan (and did so), is the Court in this jurisdiction entitled to consider whether her ‘first’ divorce would have been recognised in the UK, for the purpose of proceedings relating to her ‘second’ divorce?
(b) If the Court is so entitled, the Respondent's evidence is that the talak was pronounced in the UK and then presented to the Union Council in Pakistan where the divorce was obtained. On that basis, was this a transnational divorce incapable of recognition in this jurisdiction?”
HHJ Kloss said that the listing of a preliminary hearing was appropriate and proportionate, as the decision on the law might remove the need for expert evidence on the divorce laws in Pakistan and for determining the disputed factual issues between the parties.
Hearing on 13 th July 2021
A bundle of evidence was provided to the court including statements from the parties and their witnesses. The court also had skeleton arguments from the Petitioner who was representing himself, Mr Andani who was assisting the Respondent and Mr Murray for the Queen's Proctor. Mr Murray had also provided a bundle of authorities.
I heard from Mr Murray for the Queen's Proctor first who set out the law. I was very grateful for his assistance. I then heard from the Petitioner in person who adopted Mr Murray's arguments and then Mr Andani for the Respondent who contended Mr Murray's analysis of the law was wrong and that this court should depart from precedent.
It was clear from the arguments of the parties and of Mr Murray for the Queen's Proctor that they agreed this court had jurisdiction to consider the second question. The law and authorities were clear. I will deal with jurisdiction very shortly, later.
Background
Both parties make allegations against each other including that certain key documents being relied on have been forged. It is not necessary for these proceedings about a question of law to consider the veracity of the allegations made by the Petitioner against the Respondent and vice versa.
I take the background and the steps taken to obtain the talaq (an Islamic divorce) from the witness statement of the Respondent and from her skeleton argument. I heard no live evidence from any of the witnesses.
Ms Parveen, the Respondent, married her ‘first’ husband, Mr Aslam, in Pakistan on 1st November 2000. They lived together for a short period of time (a matter of weeks) before Mr Aslam returned to the United Kingdom. The Respondent remained in Pakistan. There were no children of the relationship.
In a witness statement provided to the Respondent, the ‘first’ husband says he did not have the financial resources to bring the Respondent to the United Kingdom. In any event it is agreed that in February 2008 he was given an ultimatum by the Respondent's family members. He was either to sponsor the Respondent so she could move to the United Kingdom or he should divorce her.
On 10th February 2008 Mr Aslam pronounced talaq in England. In the form of a letter, the pronouncement was given to the Respondent's brother.
The letter went to a mosque in Bradford where it was converted into a divorce certificate on 10th February 2008 (exhibits NP2 at I12 and NP3 at I13). A mufti from the mosque, the witness Mr Jamil Ahmed (L1), explained that the letter met the requirements for an Islamic divorce and it had to be registered with the Union Council in Pakistan. He said the letter did not meet the requirements for an English or a Pakistani divorce.
The divorce certificate issued by the mosque in Bradford went to the Respondent in Pakistan (NP2 at I11). It was then provided to the local Union Council in Pakistan. A document from the Union Council is exhibited at NP5 I20. It sets out the date of notice of divorce as being 21st February 2008, the date of failure of conciliation as 29th May 2008 and the date of “effectiveness of divorce as 29th May 2008”. This procedure initiated by the ‘first’ husband was in accordance with the Muslim Family Laws Ordinance in 1961 which governs marriage and divorce in Pakistan.
The Respondent married the Petitioner in a Nikha ceremony in Pakistan on 19th December 2008. The Respondent moved to this country on 28 th March 2009 and lived with the Petitioner. In due course, the marriage broke down.
The Petitioner now seeks the marriage to be declared a nullity on the basis that the Respondent remained married to the man she married on 1st November 2000. The Petitioner says her subsequent marriage to him was bigamous.
The Petitioner's case was the following:
First issue — jurisdiction
The Petitioner relied on sections of the Domicile and Matrimonial Proceedings Act 1973 and the Family Law Act 1986 (“the 1986 Act”) as interpreted in various cases which allow the courts in this jurisdiction to consider the validity of overseas divorces. Based on the legislation and the case law the Petitioner contended that the Court had jurisdiction in the matters subject to these proceedings.
Second issue – transnational divorce?
In relation to the second issue, the Petitioner, relied on the 1986 Act, Part II Recognition of Divorces, Annulments and Legal Separations and in particular section 46 which sets out the grounds for recognition of overseas divorces.
The Petitioner contended that complying with the Muslim Family Laws Ordinance in 1961 for divorce would amount to “proceedings”.
The first fundamental step of the proceedings would have been the ‘first’ husband, Mr Aslam's, pronouncement of talaq which was in written form. Without that pronouncement there would have been no effective divorce. This was the initiation of the proceedings.
In his well-argued skeleton, the Petitioner relied on R. v Secretary of State for the Home Department, Ex parte Ghulam Fatima [1986] A.C. 527 (“ Ex parte Ghulam Fatima”) where the House of Lords considered a talaq pronouncement in this jurisdiction where the wife lived in Pakistan before notice was sent to the relevant authority in Pakistan. The Court held that the divorce was not entitled to recognition as it was a divorce merely concluded abroad. Although the Court was considering the Recognition of Divorces and Legal Separations Act 1971 (“the 1971 Act”), the Petitioner contended the same principles would apply under the 1986 Act.
The Petitioner further relied on the more recent case of Berkovits v Grindberg [1995] 1 FLR 477 (“ Berkovits v Grindberg”) where a ‘get’ or ‘gett’, a Jewish divorce, was written in this jurisdiction before being pronounced in Israel.
The Petitioner raised further arguments about whether the failure of the husband to provide the letter or document to the Chairman of the Union Council was a further reason for invalidating the divorce. In view of my decision on the second issue, I will not consider the other arguments raised.
In summary, the Petitioner contended that the Respondent's arguments were ill-conceived. Her divorce proceedings started in this jurisdiction and concluded in Pakistan. The divorce was a transnational one.
The Queen Proctor's case was the following
The first issue — jurisdiction
The Queen's Proctor's position was that this court had jurisdiction to consider the question of the recognition and validity of an overseas divorce as was abundantly clear from the legislation and...
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