El Fadl v El Fadl
| Jurisdiction | England & Wales |
| Judgment Date | 22 July 1999 |
| Court | Family Division |
Divorce – Overseas divorce – Recognition by English court – Husband obtaining talaq divorce in the Lebanon – 17 years later wife commencing divorce proceedings in England – Wife claiming to be unaware of talaq – Whether talaq should be recognised as creating a valid divorce in England – Family Law Act 1986, s 46.
On 9 April 1981 the husband and wife, who were at that time both Lebanese nationals and domiciled in the Lebanon, underwent a polygamous marriage which was permitted by local law. The husband and wife had been having an affair for several years and their marriage occasioned very little change in their practical relationship: they did not set up home together and shortly afterwards the wife came to London, where she stayed at the husband’s expense. On 11 December 1981 the husband ended the marriage by means of a ‘talaq’ procedure carried out in the Lebanon. Under that procedure a husband, although not a wife, could divorce his spouse by unilateral act which involved him pronouncing a repudiation of her by appropriate words such as ‘I divorce you’. The wife’s consent or objection was irrelevant and she did not need to be present. In accordance with the law of the Lebanon, the husband pronounced the talaq formally in front of two witnesses and it was registered before the Sharia court. The talaq did not affect the pattern of their lives any more than the marriage had done: they continued to meet in different parts of the world and the husband continued to maintain the wife. However the relationship subsequently ended and the husband ceased providing for the wife in 1996. In 1998 the wife petitioned for divorce in England. The wife contended that she was wholly unaware of the talaq procedure until it was disclosed in the answer filed to her divorce petition in Spring 1998 and that it should not be recognised under s 46 of the Family Law Act 1986 creating a valid divorce in England.
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a Section 46 of the 1986 Act, so far as material, provides: ‘(1) The validity of an overseas divorce, annulment or legal separation obtained by means of proceedings shall be recognised if—(a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; and (b) at the relevant date either party to the marriage—(i) was habitually resident in the country in which the divorce, annulment or legal separation was obtained; or (ii) was domiciled in that country; or (iii) was a national of that country. (2) The validity of an overseas divorce, annulment or legal separation obtained otherwise than by means of proceedings shall be recognised if—(a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; (b) at the relevant date—(i) each party to the marriage was domiciled in that country; or (ii) either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce, annulment or legal separation is recognised as valid; and (c) neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date . . .’
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Held – In according recognition in the United Kingdom to overseas divorces under s 46 of the 1986 Act the test was whether the divorce depended for its validity, at least in part, on what could properly be termed ‘proceedings’. In the present case although the Sharia court could not decide whether the divorce should be made or not, what occurred before it with the assembly of the court, judge and clerk, and the duty to record into the register, having taken formal declarations, was properly described as ‘proceedings’ and the local law explicitly required such proceedings as an integral part of the divorce process. Since both spouses were at the material time domiciled in, and indeed nationals of the Lebanon, the divorce qualified for recognition under s 46(1) of the 1986 Act. Moreover, however much a unilateral divorce without notice might offend English sensibilities, comity between nations and belief systems required that one country should accept the conscientiously held but very different standards of another where they were applied to those who were domiciled in it. Where, as in the present case, the talaq was the prevailing form of divorce in the country of both parties, and it had been validly executed there so that the marriage was at an end in the country where it was contracted and to which both parties belonged, and where there was no evidence of forum shopping, there was no basis for the court refusing to recognise the divorce. Whilst it was impossible to say when the husband had told the wife of the divorce it was apparent that she knew perfectly well by the end of 1987 and that she had accepted the inevitable, neither making protest nor adjusting her position in any other way for the next 11 years or so until 1998. It followed that the parties were validly divorced in December 1981 and there was no subsisting marriage to dissolve, and accordingly the wife’s petition would be dismissed.
Per curiam. The same legal consequences followed if the divorce was a divorce otherwise than by proceedings. Both parties were domiciled in the Lebanon at the material time. The Sharia court record was a sufficient official document certifying the validity of the divorce in Lebanese law.
Cases referred to in judgmentChaudhary v Chaudhary [1985] Fam 19, [1984] 3 All ER 1017, [1985] 1 WLR 350, CA.
D v D [1994] 1 FCR 267; sub nom D v D (recognition of foreign divorce) [1994] 1 FLR 38.
E (child abduction: non-Convention country), Re [1999] 3 FCR 497, [1999] 2 FLR 642, CA.
Quazi v Quazi [1980] AC 744, [1979] 3 All ER 897, [1979] 3 WLR 833, HL.
Qureshi v Qureshi [1972] Fam 173, [1971] 1 All ER 325, [1971] 2 WLR 518.
Zaal v Zaal (1982) 4 FLR 284.
PetitionThe wife’s petition for divorce in England was defended by the husband on the basis that he had ended the marriage in December 1981 by means of a ‘talaq’ procedure carried out in the Lebanon. The facts are set out in the judgment.
John Reddish (instructed by Arnold George & Co) for the wife.
Jeremy Posnansky QC (instructed by Sears Tooth) for the husband.
HUGHES J.This is a defended divorce suit in which the petitioner is the wife. Although there are other questions, the issue of substance is whether there is a subsisting marriage to dissolve. The respondent husband’s case is that the marriage, which he admits, was brought to an end as long ago as December 1981, by means of a ‘talaq’ procedure carried out in the Lebanon. The wife’s case is that she was wholly unaware of any such event until it was disclosed in the answer filed to her present petition, which occurred in the spring of 1998, accordingly more than 16 years later. She contends that for that and associated reasons the talaq procedure should not be recognised as creating a valid divorce in this country. Despite that being the issue I shall for convenience refer to the parties from time to time, purely for simplicity, as ‘husband’ and ‘wife’.
Apart from expert evidence, I have heard the oral evidence of the wife and of two friends of hers in support. I have not heard the husband, who is in Beirut. He has filed medical evidence indicating that he is confined to a chair with severe osteoporosis, collapsed vertebrae, diabetes, high blood pressure and loss of balance. He is now 75 years of age. It is said in the medical documents that he could travel only at some risk. He has filed supporting evidence from three witnesses, who appear to be either business or social associates, together with a statement from a General Mattar who gives vital evidence as to the circumstances of the marriage and of the talaq. None of those people have attended to give evidence either.
The only witness for the husband who has given oral evidence is his expert in Lebanese law, Mr Edge, who is an independent English lecturer and barrister. It follows that none of the evidence of fact advanced by or on behalf of the husband has been tested, nor has it been given other than in witness statements no doubt drafted for the witnesses, of course perfectly properly, upon instructions. In the case of the husband allowance must plainly be made for the physical obstacles to travel. In the case of the others no reason is offered for their non-attendance, except that they are abroad. As is realistically accepted by Mr Posnansky QC, on behalf of the husband, in the context of experienced international travellers, which all these people are, that is no reason at all.
The same applies to a further witness who is relied upon by the wife, a Lebanese gentleman called Oussama El-Abed. It follows that in none of those cases can I give to the evidence of those witnesses the weight that it would have if the witness had been here and the evidence had stood up to proper
probing by cross-examination. In the case of Mr El-Abed the consequence is the reduction in value of an assessment of the husband’s behaviour during the marriage. In the case of three of the husband’s witnesses the consequence is a reduction in weight of evidence which is significant, but not central.
In the case of General Mattar his evidence is wholly central to the issues raised by the husband. I find his absence completely unexplained and surprising. Whilst I accept, of course, from Mr Posnansky that General Mattar has given no indication of any withdrawal from the statements contained in his written witness statement, I cannot avoid attaching considerable significance to the fact that notwithstanding the importance of his evidence he has chosen not to attend to give it in person.
The husband’s witness statement contains a reference to another potential witness, a Mr Maalouf. That gentleman is said by the husband, and, indeed, by the wife, to be the husband’s legal factotum in England. He is said in the husband’s witness statement to be...
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