Chebaro v Chebaro
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE PURCHAS,LORD JUSTICE BALCOMBE,LORD JUSTICE NEILL |
| Judgment Date | 05 February 1987 |
| Judgment citation (vLex) | [1987] EWCA Civ J0205-6 |
| Docket Number | 87/0089 |
| Court | Court of Appeal (Civil Division) |
| Date | 05 February 1987 |
[1987] EWCA Civ J0205-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Lord Justice Purchas
Lord Justice Neill
Lord Justice Balcombe
87/0089
MR DONALD HART, Q.C., and MR M. P. ALLWEIS, instructed by Messrs Rowleys & Blewitts (Manchester), appeared for the Appellant (Respondent).
MR R. J. JOHNSON, Q.C., and MISS D. M. LAMBERT, instructed by Messrs Duncan Straker & Co. (Altrincham), appeared for the Respondent (Petitioner).
I will ask Lord Justice Balcombe to give the first judgment.
Until Part III of the Matrimonial and Family Proceedings Act 1984 was brought into force, our courts had no power to grant ancillary financial relief after divorce unless the decree had been granted in this country, notwithstanding that both the property and the parties were within the jurisdiction. This resulted in a number of cases where the recognition of an overseas divorce obtained by a husband was the issue before the court. The reason why the issue arose in this way was because, if the overseas divorce was recognised as valid here, there was no longer any marriage subsisting, so that the wife was unable to petition for a decree of divorce, and was consequently unable to claim financial relief, notwithstanding that there was property in this country (often the matrimonial home) and that her ex-husband was living and working here. See, e.g. Quazi v Quazi (1980) A.C. 744; Chaudhary v Chaudhary (1985) Fam. 19. The unsatisfactory nature of the law had long been recognised: see Quazi v Quazi (1980) A.C. at pages 785, 810, 819—and in 1982 the Law Commission recommended (Law Com. No. 117) that the High Court should have power to entertain applications for financial provision and property adjustment orders, notwithstanding the existence of a prior foreign divorce. This recommendation was given statutory effect by Part III of the 1984 Act, which came into force on 16th September 1985 by virtue of the Matrimonial and Family Proceedings Act 1984 (Commencement No. 2) Order 1985 ( S.I. 1985 No. 1316). The question raised by this appeal is whether the court can entertain an application under Part III when the overseas divorce was obtained before 16th September 1985.
Mr and Mrs Chebaro are Lebanese. They were married in Beirut on 26th May 1966. They have four children born respectively in 1967, 1968, 1970 and 1971. In 1976 they came, with their family, to this country and established their matrimonial home at Sale in Cheshire. They separated in December 1984 and on 16th April 1985 the marriage was formally dissolved by a decree of divorce obtained by the husband in the Lebanon, the validity of which, prima facie, would be recognised in England. On 26th February 1986 the wife applied for leave to make an application under Part III of the 1984 Act, and the husband at once raised the question of jurisdiction, on the basis that Part III does not apply where the overseas divorce was granted, as here, before 16th September 1985. This issue came before Mr Justice Sheldon who, by a reserved judgment delivered on 26th March 1986—and reported at (1986) Fam. 71—decided in favour of the wife and gave her leave to pursue her application. The husband has appealed to this court.
Part III of the 1984 Act comprises Sections 12 to 27 (inclusive). Section 12 (1) is in the following terms:
"Where-
"(a) a marriage has been dissolved or annulled, or the parties to a marriage have been legally separated, by means of judicial or other proceedings in an overseas country, and
"(b) the divorce, annulment or legal separation is entitled to be recognised as valid in England and Wales, either party to the marriage may apply to the court in manner prescribed by rules of court for an order for financial relief under this Part of this Act."
There is a long established principle of statutory construction that a statute shall not be interpreted retrospectively so as to impair an existing right or obligation. A statute is retrospective if (inter alia) it attaches a new disability in regard to events already past. For a recent statement of this principle see Yew Bon Tew v Kenderaan Bas Mara (1983) 1 A.C. 553, 558F-G. The principle is of general application, and there are no special rules applicable to the construction of matrimonial statutes—see Lewis v Lewis (1984) Fam. 79, 89A-C. It has been said (as in Yew Bon Tew (supra)) that the principle applies unless the result is unavoidable on the language used. I prefer the approach adopted by Mr Justice Brandon (as he then was) in Powys v Powys (1971) P. 340 at page 350D-E:"The true principles to apply are in my view, these: that the first and most important consideration in construing a statute is the ordinary and natural meaning of the words used; that, if such meaning is plain, effect should be given to it; and that it is only if such meaning is not plain, but obscure or equivocal, that resort should be had to presumptions or other means of explaining it." The reasoning of Mr Justice Brandon in Powys v Powys was expressly approved by this court in Chaterjee v Chaterjee (1976) Fam. 199, a decision which, unless distinguishable, is binding on us.
However, whichever approach is here adopted, the result will be the same, since in my judgment the meaning of the words used is plain and unequivocal. The use of the past tense—"where a marriage has been dissolved"—in contradistinction to the present tense in the immediately following sub-paragraph—"and the divorce… is entitled to be recognised"—makes it clear that the section is intended to apply to a decree of divorce, whenever pronounced and whether before or after 16th September 1985. On this point I am in complete agreement with the views of Mr Justice Sheldon as stated at (1986) Fam. page 80F-G. Further support for this construction is afforded by the provisions of sub-paragraphs (a) and (b) of Section 15 (1) of the 1984 Act. These lay down the jurisdictional requirements which have to be satisfied for the court to entertain an application for financial relief under Part III. They are if:"(a) either of the parties to the marriage was domiciled in England or Wales…on the date on which the divorce, annulment or legal separation obtained in the overseas country took effect in that country; or (b) either of the parties to the marriage was habitually resident in England and Wales…throughout the period of one year ending with the date on which the divorce, annulment or legal separation obtained in the overseas country took effect in that country". This is language which it is hard to reconcile with a construction that limits the operation of Section 12 only to those overseas divorces granted after the date when Part III came into force.
This interpretation has the added advantage of being consistent with the interpretation placed by the courts on similar, though less obvious, words in earlier statutes dealing with the like subject-matter. In Section 5 (1) of the Matrimonial Causes Act 1963 the words, imported by reference, were:"On pronouncing a decree nisi…or at any time thereafter." It was held in Powys v Powys (supra) that these words, on their ordinary and natural meaning, were amply wide enough to cover not only cases in which a decree was pronounced after the date of coming into force of the 1963 Act, but also cases in which a decree had been pronounced before that date. In Section 4 (1) of the Matrimonial Proceedings and Property Act 1970 the words were:"On granting a decree of divorce…or at any time thereafter" and these words were also held to be retrospective in their operation so as to apply to decrees granted before the Act came into force—see Williams v Williams (1971) P. 271; Powys v Powys (supra). Similar words in Sections 23 (1) and 24 (1) of the Matrimonial Causes Act 1973 were held by this court to have the like retrospective effect in relation to the date of granting the decree of divorce—see Chaterjee v Chaterjee (supra); Bonning v Dodsley (1982) 1 W.L.R. 279. I accept the submission of Mr Hart Q.C. for the appellant that it would be possible to distinguish these decisions from the present case, but to do so would be to introduce into this field more of those fine distinctions which tend to bring the law into disrepute. It is noteworthy that the decision of this court in Lewis v Lewis (1985) Fam. 79, which did purport to introduce such a distinction, was affirmed by the House of Lords on other grounds, and this particular issue of retrospective operation—whether the words "on granting...
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