Nazia Parveen v Assim Balal Hussain
| Jurisdiction | England & Wales |
| Judge | Lord Justice Moylan,Lady Justice Asplin,Lord Justice Stuart-Smith |
| Judgment Date | 04 November 2022 |
| Neutral Citation | [2022] EWCA Civ 1434 |
| Docket Number | Case No: CA-2021-001921 |
| Court | Court of Appeal (Civil Division) |
| Year | 2022 |
and
[2022] EWCA Civ 1434
Lord Justice Moylan
Lady Justice Asplin
and
Lord Justice Stuart-Smith
Case No: CA-2021-001921
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MRS JUSTICE ARBUTHNOT
Royal Courts of Justice
Strand, London, WC2A 2LL
Karim Andani (instructed by Ashwells Law LLP) for the Appellant wife
The Respondent Husband in person
Simon Murray (instructed by the Treasury Solicitor) for the Intervenor
Hearing date: 16 June 2022
Approved Judgment
This judgment was handed down remotely at 10.30am on 4 November 2022 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
I propose, for convenience, to call the parties the wife and the husband although whether their marriage in Pakistan on 19 December 2008 was a nullity is the issue in the case.
The wife appeals from Arbuthnot J's determination on 3 September 2021 that her marriage to the husband was void because her previous marriage “remains undissolved by operation of law” in England and Wales. That determination was based on the previous marriage having been dissolved by a transnational divorce which, although recognised as valid in Pakistan, was not entitled to recognition under the Family Law Act 1986 (“the FLA 1986”). As a result, although not expressed in these terms, the judge determined that, as a matter of English law, the wife remained lawfully married at the time of her marriage to the husband and the marriage was, therefore, void pursuant to the provisions of section 11(b) of the Matrimonial Causes Act 1973 (“the MCA 1973”).
The wife was represented at the hearing of this appeal, with permission previously granted by King LJ, by her legal representative, who also appeared below, Mr Andani. The husband was in person, as he was at the hearing below. The Queen's Proctor, who was given permission to intervene in the proceedings below and in this appeal, was represented by Mr Murray.
The Grounds of Appeal, as reformulated following the grant of permission to appeal, contend in summary that the judge should have determined that the marriage was valid because the wife had capacity to marry under the law of her domicile, Pakistan, since, by that law, her previous divorce was recognised as valid. The case advanced by the Queen's Proctor, supported by the husband, is that the fact that the wife's previous divorce is not entitled to recognition under sections 45/46 of the FLA 1986 is determinative because the court is “bound … to apply (that) statute” for the purposes of determining whether the wife was lawfully married at the date of her marriage to the husband.
I have considered it appropriate to set out the legal background in greater detail than that contained in the parties' submissions. This is because, in my view, the answer to this appeal requires a broader consideration of that background, including various Law Commission Reports.
As I explain below, the judge was clearly right to decide that the wife's previous divorce was a transnational divorce which was not entitled to recognition under the FLA 1986. This was because the proceedings took place in part in England (the pronouncement of a talaq) and in part in Pakistan. However, contrary to the case advanced by the Queen's Proctor, I do not consider that that is the end of the matter. In my view, in the circumstances of this case, section 45 of the FLA 1986 is not determinative of the effect of a divorce which is not entitled to recognition under its provisions. Rather, I consider that the issue raised by this appeal is the relationship between capacity to marry rules and divorce recognition rules.
In simple terms, a person's capacity to marry is governed by the law of their antenuptial domicile. The recognition of a divorce, whether obtained in “the British Islands” (section 44) or in a “country outside the British Islands” (section 45), is governed by the provisions of the FLA 1986. What happens when the two are in conflict? In other words, when a person, in this case the wife, has capacity to marry by the law of her antenuptial domicile, Pakistan, but her previous divorce is not entitled to recognition in England and Wales under the FLA 1986, is priority to be given to the law applicable to capacity to marry or to the law applicable to the recognition of divorces.
For the reasons set out below, I have concluded that, in this case, priority should be given to the law applicable to capacity to marry rather than the law applicable to the recognition of divorces with the result that the wife's marriage to the husband was not void but was, and is, valid.
Background
The wife was born in and, at all times up to the date of her marriage to the husband, was a national of and domiciled in Pakistan. She was clearly domiciled in Pakistan because that was her domicile of origin and she had not lived outside Pakistan at any time prior to her marriage to the husband.
The wife married her previous husband, Mr Aslam, in Pakistan on 1 November 2000. He lived in England and, a few weeks after the marriage, returned to his home here. The wife remained living in Pakistan. On 10 February 2008, Mr Aslam pronounced a talaq in England, by letter. A “divorce certificate” was provided by a mosque in Bradford. Mr Aslam was informed, correctly, that these steps were of no effect as a matter of English law. The divorce certificate was then sent to the wife in Pakistan and lodged with the relevant Union Council pursuant to the provisions of the Muslim Family Laws Ordinance 1961. The Union Council duly issued a certificate stating that the divorce was effective as of 29 May 2008. For the purposes of the current proceedings, this divorce has been deemed to be effective under the law of Pakistan to determine the 1 November 2000 marriage and, accordingly, that under the law of Pakistan the wife had capacity to marry the husband.
The husband and the wife married in Pakistan on 19 December 2008. She came to England to live with the husband on 28 March 2009 and has lived here since then.
The husband commenced divorce proceedings on 25 April 2018. This led to the pronouncement of a Decree Nisi of divorce on 27 September 2019. In or about August 2020, the husband applied for the Decree Nisi to be rescinded and for the Petition to be dismissed on the basis that the wife remained married to her previous husband at the date of her marriage to the husband. That application was initially dismissed but the husband was given permission to appeal out of time and his application was reinstated. Directions were then given for the progress of the application which included a direction that, if the husband maintained that the marriage was void, he must issue a nullity petition. The husband duly issued a nullity Petition on 12 February 2021 in which he contended that at “the time of the marriage the (wife) was already lawfully married”.
On 25 March 2021, His Honour Judge Kloss set out the issues which the case appeared to raise. The first of these was: “Is it a requirement that the (wife's) divorce would have been recognised in the UK or is it sufficient that it was recognised in Pakistan (given that the (wife's) second marriage also took place in Pakistan)”. She also invited the Queen's Proctor to intervene in the proceedings to assist the court.
The Queen's Proctor agreed to intervene and appeared through Mr Murray at the next hearing on 3 June 2021. The issues were then identified as being:
“(a) On the assumption that the Respondent's first divorce was valid in Pakistan and that she was therefore free to marry the Petitioner in Pakistan (and did so), is the Court in this jurisdiction entitled to consider whether her first divorce would have been recognised in the UK, for the purposes of proceedings relating to her second divorce?
(b) If the Court is so entitled, the Respondent's evidence is that the talaq was pronounced in the UK and then presented to the Union Council in Pakistan where the divorce was obtained. On that basis, was this a transnational divorce incapable of recognition in this jurisdiction?”
Although, perhaps, not as clearly expressed as it might have been, the first issue can be seen as raising the question of the effect of any conflict between the capacity to marry rules under the law of Pakistan and the divorce recognition provisions of the FLA 1986.
However, by the time the matter was heard by Arbuthnot J, the submissions before the court focused almost exclusively on the second issue and, as a result, they did not provide the judge with the arguments with which this court has been principally concerned. It is unsurprising that, in those circumstances, Arbuthnot J considered only the effect of the FLA 1986 and did not separately consider the effect of the wife having capacity to marry under the law of her domicile. Applying Quazi v Quazi [1980] AC 744, In re Fatima [1986] 1 AC 527 and Berkovits v Grinberg (Attorney General Intervening) [1995] Fam. 142, Arbuthnot J decided that the wife's previous divorce was a transnational divorce which was not entitled to recognition under the FLA 1986. Accordingly, she determined that the marriage between the husband and the wife was void.
As referred to above, the wife submits on this appeal that her marriage to the husband is valid because she had capacity to marry under the law of Pakistan which recognised her divorce as having validly determined her previous marriage.
The husband did not file written submissions but, in brief oral submissions which we permitted him to make, he essentially supported the judge's decision.
Mr Murray's case was that the recognition provisions in sections 45 and...
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