Hayatleh v Modfy
| Jurisdiction | England & Wales |
| Judge | Lord Justice McFarlane,Lord Justice Briggs,Lord Justice Underhill |
| Judgment Date | 14 February 2017 |
| Neutral Citation | [2017] EWCA Civ 70 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: B6/2015/1907 |
| Date | 14 February 2017 |
[2017] EWCA Civ 70
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM OXORD FAMILY COURT
HHJ Tolson QC
OX13D00132
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice McFarlane
Lord Justice Underhill
and
Lord Justice Briggs
Case No: B6/2015/1907
Mr Nicholas Goodwin QC (instructed by Selby Lowndes Family Solicitors) for the Appellant
Mr Timothy Scott QC leading Mr William Tyzack (instructed by Dawson Cornwell) for the Respondent
Hearing dates: 9 th November 2016
Approved Judgment
This appeal concerns the validity of a marriage conducted in Syria in l999. The issue arose only after Professor Khaled Hayatleh ("the husband") petitioned for divorce on 8 th February 2013 and his wife, Mrs Reem Mofdy ("the wife") issued a cross-prayer for divorce two months later. It was not until 3 rd June 2013 that the adequacy of the paperwork establishing the validity of the marriage was first questioned by District Judge Gatter. Thereafter the divorce proceedings have been in abeyance whilst the parties and then the court have investigated the question of whether or not the parties were validly married.
The issue was determined by His Honour Judge Tolson QC sitting at the Oxford Family Court on 27 th May 2015. He held that the Syrian marriage was valid and that it was therefore open to the parties to pursue divorce proceedings in the United Kingdom. It is against that outcome that the husband now appeals.
The factual background
The factual background can be shortly stated and is largely agreed between the parties.
On 25 th February 1999 a religious marriage took place in Syria between the wife, who was present, and the husband, who was not. The husband was then living in England and his place was taken, as proxy, at this religious ceremony by his brother. This proxy procedure was, as the judge found, entirely sufficient for the religious purposes of that ceremony. The marriage was an arranged one and, although the couple had not met for many years (having been childhood acquaintances) all parties accepted, and the judge had no doubt, that "the marriage ceremony was intended as a binding and valid ceremony according to Syrian law".
On 28 th April 1999 the Third Religious Court in Homs acting "in the name of The Arab People in Syria" (a reference to Palestinians resident in Syria which is the appropriate classification for this couple) determined the following two matters (as set out in the official English translation):
"1. To confirm the two claimants unofficial marriage that occurred in Homs on Feb 25 1999 on the basis of bridal money amounting to 50 Syrian pounds paid in advance and 300,000 pounds deferred;
2. That the official registration of the marriage be conditioned to the presentation of the marriage permit issued by The Military Service Department, or the realisation of an infant."
Thereafter the husband and wife both travelled to Jordan in order to spend time together and to commence attempts to obtain entry clearance for the wife to join the husband in England. In particular on 28 th May 1999 the husband wrote to his English MP in the following terms:
"Also, I enclose a copy of the fax that I have sent to the British Embassy in Jordan, where both my fiancée Reem Mofdy and I can travel and meet in the Embassy to provide new evidence that we have been in regular contact recently and are genuinely a couple, already married according to both Islamic and Syrian laws."
In his judgment, HHJ Tolson placed particular emphasis on the last nine words of that statement by the husband.
The attempt to obtain entry clearance for the wife to the United Kingdom was successful. Shortly after her arrival the husband threw a party or celebration, which is devoid of direct legal or religious significance, to introduce his "wife" to his friends and colleagues. Thereafter the couple settled down to family life together and on 1 st August 2000 their only child, a daughter, was born.
On 11 th July 2003 the wife became a British citizen by naturalisation. Thereafter, as the judge found, "they continued to live as man and wife for the next decade until the end of their relationship with the present divorce proceedings. There was in the whole of that time no suggestion that they were anything other than a properly married couple".
During the course of her evidence before the judge the wife suggested that there were various occasions when discussions had taken place during which she had enquired of the husband whether there were any formalities which remained to be complied with in terms of their marriage in Syria, and she was assured that there were not. The judge, however, was not persuaded as to the credibility of that particular piece of evidence and stated that he was "not convinced that these discussions in fact ever took place".
In the lead up to the hearing further investigations were undertaken in Syria resulting in two different and apparently conflicting records of the civil status of these parties. The first, dated 10 th July 2014 and referred to in the judgment as 'D5', is in the form of a translated certificate from the Syrian Arab Republic Ministry of Labour and Social Affairs (General Board of Arab Palestinian refugees) and purports to be an "individual census record abstract of Arab Palestinians". The document names the husband and the wife, together with their respective dates and places of birth. It describes them as "husband" and "wife" and gives their marital status as "married". The entry relates to a "Family Card Number" given as "146476". The second document dated 8 th February 2015 ['D19'], under the same named government agency, deals solely with the husband and gives his marital status as "single". That document relates to Family Card Number 16881. There is a further document, again issued by the same government agency, dated 10 th February 2015 which contains the details of the husband's parents and their twelve children. This record also relates to Family Card Number 16881 and, again, the marital status of the husband is entered as "single".
Validity of marriage: the legal context
It is well established law and common ground between the parties that the validity of a marriage, wherever in the world it is celebrated, is determined by the lex loci celebrationis (the law of the place where it was celebrated), even where that location is not governed by the law of the domicile of the parties. It follows that in the present case, where the only purported ceremony of marriage took place in Syria, the validity of this marriage must be determined in accordance with Syrian law.
Expert evidence
The court had the benefit of receiving three reports together with oral evidence from a jointly instructed expert, Dr Anas Bao, who is a specialist in international law, and, in particular, the law of Syria. Analysis of Dr Bao's evidence requires some care partly as a result of the risk of some inevitable loss of precise meaning during the process of translation and partly because, it is suggested, his evidence changed during the course of his various contributions to the case.
In his first report, dated 12 th September 2014, Dr Bao advised that it is "the true contract marriage" that makes Syrian marriages valid. In relation to the civil registration of a religious marriage he advised:
"For marriage registration in the civil status records, a childbirth leads to marriage registration if the marriage contract is not registered under order of the judge pending a marriage licence is presented a child is born." (sic)
In reply to a question "Please confirm if this marriage is valid in Syria or not?" Dr Bao gave the following reply:
"A marriage between spouses Lawyer Khaled Hayatleh and Mrs Rim Almofdi, is valid according to the provisions of Syrian laws."
The reason that he gave for that opinion was that the Personal Status Court in Homs had verified the authenticity of the marriage. Further, relying on the certificate issued by the Ministry of Labour and Social Affairs on 10 th July 2014, Dr Bao advised that:
"It can be deduced that such marriage was registered with the competent authority in Syria. Marriage was registered pursuant to the childbirth (name) on 1/8/2000. The documents were sent from the Personal Status Court to that authority for marriage registration after the childbirth. The documents do not indicate who and when registration was made."
In response to a request to raise any other matter that might be relevant to the court's determination, Dr Bao concluded his first report as follows:
"Some worthwhile mentioning remarks in this connection that postponement of marriage registration with the civil status records because the recruitment license is not presented does not prejudice the essence of the contract where the effects of marriage contract remains valid and effective."
In his second report, dated 10 th November 2014 Dr Bao was asked "Is the marriage only valid (as in properly registered marriage with the relevant civil authorities) as regards the Syrian civil code after the registration?" His reply was:
"The Syrian law requires that the marriage shall be registered in the Civil Register in order to be [deemed] valid, which is for regulatory and administrative purposes…Nevertheless, unregistered marriage still has its full and complete Sharia effects, and the implication stipulated in Islamic Shariah Law as per the Syrian Law."
Two authorities are then given for the following separate statements:
"The formalities that do not affect the essence of the contract but impede the registration of the marriage does not deprive the wife of her right in the consequent Shariah rights."
"The wife may claim her marital rights and effects of the marriage even if it is not...
To continue reading
Request your trial
-
Akhter v Khan (Attorney General intervening)
...2 FLR 1297. Hudson v Leigh[2009] EWHC 1306 (Fam), [2013] Fam 77, [2009] 3 FCR 401, [2013] 2 WLR 632, [2009] 2 FLR 1129. Hyatleh v Mofdy[2017] EWCA Civ 70, [2017] 3 FCR Hyde v Hyde and Woodmansee [1866] 1 LR P&D 130, [1861–73] All ER Rep 175. K, Re, H,Re[2015] EWCA Civ 543, [2015] 1 WLR 3801......
-
Denise Tuitt v Rosanna Tuitt
...Adjudication Officer v Bath [2000] 1 FLR 8 applied; Pazpena de Vire v Pazpena de Vire [2001] 1 FLR 460 considered and Hayatleh v Modfy [2017] EWCA Civ 70 applied. 3. An appellate court will exercise restraint before departing from a trial judge's evaluation of evidence and facts before him......
-
Gerlie Ortiz Padero-Mernagh v Rodger Darrel Mernagh
...that the proper formalities were followed. The presumption is capable of rebuttal by strong and weighty evidence. Hyatleh v Mofdy [2017] EWCA Civ 70. 38 Issues relating to the law of the Philippines are for the purposes of English law issues of fact and I shall address those later in this ......
-
Patricia Kelly-Lambo v Esther Olufunmilayo Lambo
...cases I have been referred to range from Piers v Piers (1849) 11 House of Lords cases (Clarks) 9 ER 1118 through to Hyatleh v Mofdy [2017] EWCA Civ 70. The article ‘The Presumptions In Favour of Marriage’ by Prof Probert Cambridge Law Journal 77 (2) provides a fascinating analysis of the p......