Masroor Ahmed Syed Otherwise Syed Masroor Ahmed V. Samrana Ahmed
| Jurisdiction | Scotland |
| Judge | Lord Hamilton,Lord Johnston,Lord Macfadyen |
| Date | 13 October 2005 |
| Docket Number | A3001/00 |
| Court | Court of Session |
| Published date | 13 October 2005 |
| EXTRA DIVISION, INNER HOUSE, COURT OF SESSION | |
| Lord Hamilton Lord Macfadyen Lord Johnston
| A3001/00 OPINION OF THE COURT delivered by LORD HAMILTON in RECLAIMING MOTION in the cause MASROOR AHMED SYED, otherwise named as SYED MASROOR AHMED Pursuer and Respondent; against SAMRANA AHMED Defender and Reclaimer: _______ |
Act: J.M. Scott; Balfour & Manson (Pursuer and Respondent)
Alt: J.J. Mitchell, Q.C., Muqit; Brodies (Defender and Reclaimer)
13 October 2005
The background
[1]On 19 November 1979 the pursuer and respondent was married in Pakistan to the defender and reclaimer. It was an arranged marriage. Although they are now divorced and issues have been raised as to their matrimonial status at certain times, we shall, for convenience only, refer to them in this Opinion as "the husband" and "the wife" respectively.
[2]At the time of their marriage both parties were nationals of Pakistan. They remain so. From 1981 they lived for several years in the United Kingdom. Each of them is a qualified medical practitioner and held, at certain times, medical posts in this country. Two children were born of the marriage.
[3]The marriage was unhappy. The parties finally separated in November 1988. Some months thereafter the husband returned to Pakistan where, on or about 2 May 1989, he pronounced divorce by talaq.
[4]The Lord Ordinary in the present action held, the issues being contested before him, that by 3 August 1989 (following the expiry of the 90 day period of Iddat) the parties were effectively divorced under Pakistani law and that, regard being had inter alia to sections 45, 46(1), 51(3) and 54(1) of the Family Law Act 1986, this court should recognise the validity of the Pakistani divorce. Neither of these conclusions is now contested by the wife.
The issue for determination
[5]The issue now for determination concerns the proper approach to a decree in foro pronounced in a divorce action raised by the wife in the Court of Session in the latter part of 1989. That action was initially defended by the husband on various grounds; but he ultimately did not insist in his defences and the action thereafter proceeded as undefended. On 11 May 1994 the Lord Ordinary in that process, having heard evidence, pronounced decree of divorce, awarded custody of the children of the marriage to the wife and made certain orders for financial provision. These included an order that the husband pay to the wife a capital sum of £65,000. The Lord Ordinary also found the husband liable to the wife in the expenses of that action. Decree was extracted on 1 June 1994. In the present action the husband seeks reduction of that decree, except in so far as it awarded to the wife custody of the children (who are both now over the age of 16 years) and made financial provision for their maintenance.
[6]The Lord Ordinary has pronounced, after proof, decree of reduction as sought. Against that disposal the wife has reclaimed. Properly to understand the Lord Ordinary's reasoning it is necessary, in the first place, to explain the procedural and related history in the divorce action.
[7]In his defences to that action the husband pled that the action was incompetent on the ground that the parties had already been divorced in Pakistan and that that divorce fell to be recognised as valid in Scotland. His defences also included a related plea that the Court of Session had no jurisdiction to entertain the wife's action. (He did not dispute that the court had jurisdiction in the territorial sense, the wife having been habitually resident in Scotland throughout the period of one year ending with the date when the action was brought - see Domicile and Matrimonial Proceedings Act 1973, section 7(2)(b).) In response the wife averred that, on various procedural grounds, the talaq divorce relied on by the husband was ineffective under the law of Pakistan and could not be recognised in the United Kingdom. An issue involving questions of foreign law accordingly arose. On 17 October 1990 the court pronounced an interlocutor allowing parties a preliminary proof restricted to the husband's plea to the competency of the action and his related plea to jurisdiction. On 19 June 1991 the court sisted the action in terms of paragraph 9 of Schedule 3 to the 1973 Act, presumably on the basis that certain proceedings in Lahore High Court (referred to below) were continuing. In July 1992 that sist was recalled. A diet for the preliminary proof was fixed. That diet was postponed on several occasions and ultimately fixed for 8 and 9 July 1993. Shortly before that date the solicitor then acting for the husband intimated to the solicitor for the wife that the husband was still not in a position to proceed with the preliminary proof. She suggested that if, as seemed likely given the passage of time, the wife was not prepared to agree to a further continuation, the husband's pleas to the competency and to jurisdiction should simply be abandoned and the preliminary proof discharged. As the wife would not, as was anticipated, agree to a further continuation, the husband's solicitor enrolled a motion to repel these two pleas and to discharge the preliminary proof. On 7 July 1993 the court made an order inter alia repelling these pleas. It also found the husband liable to the wife in 50% of the expenses occasioned by the allowance of the preliminary proof in October 1990 but otherwise reserved the question of expenses occasioned by the allowance of that proof.
[8]Throughout the course of the Scottish proceedings up to this point the husband had been legally represented, both by counsel and by solicitors. Although a lawyer instructed on the husband's behalf in Pakistan had in November 1989 advised that at a preliminary hearing a judge at Lahore High Court had suspended an order on which the wife had relied, the husband's Scottish solicitor had apparently taken the view that the factual and foreign law basis for the husband's two pleas could not effectively be advanced until the proceedings in Lahore High Court, in which questions had been raised about the procedural validity of the Pakistani divorce, had been finally determined. On 12 July 1993 the husband's solicitor wrote to him, advising him of the court's decision of 7 July and enclosing a copy of the order. That letter also stated, among other things:-
"As I confirmed to you when we spoke by telephone, the preliminary pleas relating to the Pakistani divorce can be amended back in at a later date should a decision from the High Court become available. You are therefore not prejudiced in that respect at the moment".
The husband's solicitor continued to make representations, including representations to the Chief Justice at Lahore High Court, in an attempt to expedite the resolution of these proceedings. In the event, they were not determined (at first instance) until October 1994, some five years after their commencement.
[9]Meantime the Scottish divorce action proceeded. Among outstanding issues was the wife's claim for a capital sum on divorce, the sum claimed being £100,000. The husband's solicitor succeeded in March 1994 in obtaining a discharge of the proof fixed to deal with the outstanding issues; but at about the same time the wife's solicitors enrolled a motion to ordain the husband, as a person by then resident outwith Scotland, to sist a mandatory who would be personally responsible for such expenses of the litigation as the husband had been or might be found liable to pay to the wife. The award of expenses made by the court on 7 July 1993 had been taxed in the sum of £7,289.77 and remained unpaid. The motion was opposed on behalf of the husband but on 11 March 1994 the court granted the wife's motion and allowed a period of 28 days for such a mandatory to be sisted. The husband did not sist a mandatory. He informed his solicitor that he was not financially in a position to do so. He indicated that he would be consulting an American lawyer against the possibility that the wife might seek to enforce any Scottish decree in the United States. In about April 1994 he consulted attorneys in Buffalo, New York State. Correspondence passed between them and the husband's Scottish solicitor who informed the U.S. attorneys of the then current situation in the Scottish divorce action.
[10]On 4 May 1994 the court, on the unopposed motion of the wife and in respect of the husband's failure to sist a mandatory, allowed the action to proceed as undefended. An undefended proof took place on 11 May when the Lord Ordinary, having heard evidence, pronounced the decree referred to above, the capital sum awarded being less than that claimed. The husband's Scottish solicitor had continued to act for him extrajudicially. He had shortly before the proof attempted, unsuccessfully, to obtain a settlement of the financial claims; another, unsuccessful, attempt was made to resolve matters shortly after decree had been pronounced. The husband's Scottish solicitor advised him of these matters. He also reported that the wife's solicitor's plan was to petition for the husband's bankruptcy in England (where he owned certain property) and to seek to enforce the Scottish decree in New York.
[11]In the course of the hearing of this reclaiming motion we were informed that there had been protracted and unresolved proceedings in the United States in which the wife had sought to enforce the Scottish decree in so far as it related to the capital sum, to interest on it and to expenses. The present action, which was raised towards the end of 2000, appears to be, in part at least, designed to assist the husband in resisting these proceedings. The husband, who remarried in the United States in 1992 and has children of that marriage, has also expressed concern about the subsistence of a Scottish decree of divorce which proceeds upon the basis that, as at 1994, he was still married to the wife.
[12]The first plea-in-law for the...
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