CG 2581 2001
| Jurisdiction | UK Non-devolved |
| Judge | Judge H. Levenson |
| Judgment Date | 17 March 2004 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | CG 2581 2001 |
| Subject Matter | Bereavement and death benefits |
Decision
1. This appeal by the claimant succeeds. In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision of the Birmingham tribunal made on 6th February 2001 under reference S/44/229/1998/00385. I substitute my own decision. This is to the effect that, for the purposes of her claim to widow’s benefit and related and successor benefits, the claimant can be accepted as having been the wife of and validly and monogamously married to the deceased man named in the decision made by the adjudication officer in this case. I remit to the Secretary of State questions relating to the calculation and payment of any arrears
Background and Proceedings
2. I have been greatly assisted in this matter by lengthy written submissions made over a protracted period of time on behalf of the claimant and to those of 24th March 2003 and 9th October 2003 made on behalf of the Secretary of State. The latter incorporates an opinion from Ian D Edge of counsel, which makes submissions in relation to English law which by and large coincide with my own conclusions, but which also puts forward expert evidence in relation to Islamic law as recognised in the Yemen. Mr Edge lectures at SOAS and is the Founding Director of the Centre of Islamic and Middle East Law. He teaches courses in which the recognition of foreign and Islamic divorces is an important topic. I accept his expert evidence as incorporated in particular in paragraphs 3(viii) and 4 (ii and iii)
3. On 15th July 1996 Mr A died of a heart attack in the Yemen at the age of 64. He had been born on 5th January 1932 and he came to the United Kingdom in 1955. He worked and paid national insurance contributions in the United Kingdom for many years, interspersed with periods out of the country. (It appears that he was in the Yemen from 6th February 1967 to 28th April 1968 and from February 1973 to May 1974). In the 1965-1966 tax year he was paid or credited with 49 weeks national insurance contributions and was paid benefit for three spells. In the 1966-1967 tax year he was paid or credited with 47 weeks national insurance contributions. These records appear on pages 17-18 of the bundle of papers before me and in the tribunal’s findings. He finally left the United Kingdom in 1985.
4. On 8th September 1997 the claimant was interviewed in the Yemen, with the aid of an interpreter, by an official of the Department working as a pensions liaison officer, and affixed her finger or thumb print to a written record of the interview and to a claim for widow’s benefit based on the contributions of the deceased. She indicated that she herself was born on 6th June 1942, had never lived in the United Kingdom, that she had married the deceased when he was 30 years old and that he had been married before to a woman from the Yemen but had divorced his previous wife. The claimant did not know the previous wife’s name or which village she came from, how old the deceased was when he had married her, whether they had one child or three children (although she was sure that they had one living in the USA), when and how they had divorced or how long the deceased had been divorced before marrying the claimant. She said that she had a married daughter, that she was pregnant when the deceased had returned to the United Kingdom 7 months after marrying her, that she was married in the deceased’s village, that her parents and the deceased’s mother attended the wedding, and that she did not know what work the deceased had done in the United Kingdom.
5. On 2nd February 1998 the adjudication officer (whose functions have since been taken over by the Secretary of State) decided that the claimant had no entitlement to widow’s benefit. The ground given was that the marriage had been celebrated under a law which permitted polygamy and was not in fact monogamous at the time. I find this reasoning odd. The only evidence of any kind at that stage came from what the claimant had said and it is not clear on what basis it had simply been accepted that the deceased had been married before but had not been divorced. For my part I would have doubted that it had been sufficiently well established at that stage that the claimant herself had been married to the deceased. However, the parties now seem to accept that the claimant was married to Mr A, that the marriage was one that was recognised by Yemeni law, that Mr A had been married before, and that Mr A had divorced his first wife for the purposes of Yemeni law before marrying the claimant. Notwithstanding various comments below (which I make for the sake of completeness) I do not seek to disturb those agreed facts, which the tribunal accepted. I also assume, because it has never been suggested to the contrary, that Mr A’s first wife never resided in the United Kingdom. The issue is whether the divorce is effective for the purposes of English law and for the claim.
6. On 16th April 1998 the claimant appealed to the tribunal against the decision of the adjudication officer. On 14th January 1999 the Newcastle tribunal considered the appeal in the absence of the claimant or anyone representing her. It confirmed the decision of the adjudication officer, adopting the same reasoning. On 13th April 1999 the claimant applied to have that decision set aside on the basis that evidence had been sent that had not been considered by the tribunal. A bundle of documents was sent (or sent again) in June 2000. On 25th October 2000 the District Chairman of the tribunal set aside the decision on 14th January 1999 and after protracted submissions had been made a fresh hearing was arranged for 6th February 2001.
7. The bundle of papers before me includes a copy of a document written in Arabic (reproduced on pages 34 and 35). There is also a document on pages 32 to 33 which appears to be a translation into English of that document and which has been prepared by a translation bureau in the Yemen. A submission on behalf of the claimant states that this document was prepared for the purposes of determining inheritance rights after the death of Mr A.
8. The document is headed “Primary Court Judgement” and is stated to be signed and sealed by the Judge of...
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