Quazi v Quazi

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLord Diplock,Viscount Dilhorne,Lord Salmon,Lord Fraser of Tullybelton,Lord Scarman
Judgment Date22 November 1979
Judgment citation (vLex)[1979] UKHL J1122-1

[1979] UKHL J1122-1

House of Lords

Lord Diplock

Viscount Dilhorne

Lord Salmon

Lord Fraser of Tullybelton

Lord Scarman

Quazi (A.P.)
(Appellant)
and
Quazi (A.P.)
(Respondent)

Upon Report from the Appellate Committee to whom was referred the Cause Quazi against Quazi, That the Committee had heard Counsel as well on Wednesday the 17th as on Thursday the 18th days of October last upon the Petition and Appeal of Mohammed Ameerudin Quazi of 232 Durnsford Road, Wimbledon SW19 in the Area of Greater London praying that the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal of the 10th day of April 1979 except so far as regards the words "The application of Leading Counsel for the Respondent for leave to appeal to The House of Lords be and is hereby refused. The Appellant's and Respondent's costs of this appeal be taxed on a common fund basis in accordance with the second schedule of the Legal Aid and Advice Act of 1974." might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order so far as aforesaid might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; as also upon the Case of Bilquis Jehan Begum Quazi lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal of the 10th day of April 1979 in part complained of in the said Appeal be, and the same is hereby, Reversed and that the Order of Mr. Justice Wood of the 14th day of July 1978 be, and the same is hereby. Restored with the variation that the second and third declarations of the said Order be omitted and that there be inserted in place thereof the single declaration "that the said marriage [i.e the Indian marriage] had been dissolved on or before 28th November 1974.": And it is further Ordered, That there be no Order as to Costs in this House save that the Costs of the Appellant and of the Respondent be taxed in accordance with the provisions of Schedule 2 to the Legal Aid Act 1974: And it is also further Ordered, That the Cause be, and the same is hereby, remitted back to the Family Division of the High Court of Justice to do therein as shall be just and consistent with this Judgment.

Lord Diplock

My Lords,

1

So far as the parties to the proceedings are concerned all that is at stake in this appeal is the respondent's right under the Matrimonial Causes Act 1973 to claim some share in a small house in Wimbledon which the appellant bought in 1973 for ?3,000 with money that he says he borrowed from a friend, Both parties are of Pakistan nationality and of the Muslim faith. They were both born in India and married there in 1963. The respondent's right to make a claim under the Act depends upon whether or not that Indian marriage was still subsisting on 23rd December 1974 when she instituted divorce proceedings against the appellant in England.

2

The appellant claimed that the marriage had been dissolved either (1) by khula (a consensual form of Muslim divorce) entered into in March, 1968, in accordance with the law of Thailand, in which country it is common ground that the parties were domiciled at that time; or alternatively (2) by talaq (a form of Muslim divorce obtainable at the will of the husband alone) pronounced by the appellant in Karachi on 30th July 1974, and taking effect under the law of Pakistan ninety days thereafter, i.e., 28th November 1974, and so before the respondent's proceedings for divorce in England had been started.

3

The issue as to whether the Indian marriage between the parties was still subsisting came before Wood J. in the Family Division of the High Court, where it took fourteen days to try. The judge held that the khula had been effective to dissolve the marriage under Thai law in 1968; but, since the expert evidence of Thai law had been conflicting he also held that if, contrary to his own view, the Indian marriage was still subsisting in July 1974 it was effectively dissolved not later than 28th November 1974 by the talaq pronounced in Pakistan and the steps that had been taken thereafter in Pakistan and in England to make it effective.

4

The Court of Appeal (Orr, Ormrod and Browne L.JJ.), after a hearing which lasted seven days, reversed this judgment, holding that neither the khula nor the talaq was entitled to recognition as valid either under sections 2 and 3 of the Recognition of Divorces and Legal Separations Act 1972 ("the Recognition Act"), or under the common law rules which section 6 of the Recognition Act preserves.

5

My Lords, to dispose of this appeal it is sufficient if the appellant succeeds in showing that either of the foreign divorces that he relies on in the alternative as having dissolved his marriage to the respondent, is entitled to recognition by the English courts. The validity of a divorce by talaq obtained by a Pakistani national in accordance with Pakistani law raises a question as to the true construction of the Recognition Act and its application to talaqs obtained in Pakistan. This is of general importance in view of the number of Pakistani nationals who are settled in the United Kingdom either accompanied or unaccompanied by their wives. On the other hand, the validity of a divorce by khula entered into in Thailand by Pakistani nationals who are domiciled there, is not a question that is very likely to require consideration by an English court in any subsequent case. It depends on the domestic law of Thailand, the Thai rules of conflict of laws, the application by the Thai courts of the doctrine of renvoi, and under that doctrine, the applicability of Muslim Family Laws Ordinance 1961 of Pakistan to consensual divorces. These are questions of fact to be decided by an English court upon expert evidence of the foreign law concerned. In the instant case the expert evidence on these matters was inadequate, conflicting and confusing and any decision of the Court of Appeal or of this House that was based upon that evidence would be valueless as a precedent in any subsequent case between other parties even in the unlikely event that the circumstances were similar.

6

It was for this reason that it was decided to hear argument in this House restricted in the first instance to the question of the validity of the divorce by talaq under the Recognition Act. At the conclusion of this argument your Lordships were all of the opinion, which I also share, that even if the marriage were still subsisting on 30th July 1973, it was effectively dissolved on 28th November 1974, by a divorce by talaq that is entitled to recognition under sections 2 and 3 of the Recognition Act. So in order to avoid unnecessary prolongation of a costly hearing in a case which has been throughout conducted entirely upon Legal Aid, this House has limited its consideration to the only question that is of general importance, the validity of the Pakistani talaq, and has decided the appeal upon that point alone.

7

The preamble to the Recognition Act makes it plain that its principal, though not its only, purpose was to enable the United Kingdom to give effect in its domestic law to the Hague Convention on the Recognition of Divorces and Legal Separations of 1970 ("the Recognition Convention"). The mischief that the Convention was designed to cure was that of "limping marriages", that is, marriages that were recognised in some jurisdictions as having been validly dissolved, but in other jurisdictions as still subsisting. The cause of these discrepancies in the recognition of foreign divorces by the courts of different States was that some States under their rules of conflict of laws treated the nationality of the parties as the sole ground of jurisdiction in matters of divorce, others treated as the only ground of jurisdiction "domicile" in the strict sense in which that concept plays a part in English common law, and yet others "domicile" in the looser sense, in which that term is used in civil law as meaning habitual residence. The solution adopted by the Recognition Convention was to require all Contracting States to recognise as valid grounds of jurisdiction in matters of divorce and legal separation all three concepts, nationality, domicile and habitual residence. Article 16,0 however, left them at liberty to apply rules of law more favourable to the recognition of foreign divorces than those called for by the Convention.

8

The sections of the Recognition Act that are relevant to the recognition of the divorce by talaq in the instant case are sections 2 and 3. They read as follows:—

"2. Sections 3 to 5 of this Act shall have effect, subject to section 8 of this Act, as respects the recognition in Great Britain of the validity of overseas divorces and legal separations, that is to say, divorces and legal separations which—

(a) have been obtained by means of judicial or other proceedings in any country outside the British Isles; and

(b) are effective under the law of that country.

3.(1) The validity of an overseas divorce or legal separation shall be recognised if, at the date of the institution of the proceedings in the country in which it was obtained —

(a) either spouse was habitually resident in that country; or

(b) either spouse was a national of that country.

(2) In relation to a country the law of which uses the concept of domicile as a ground of jurisdiction in matters of divorce or legal separation, subsection (1)(a) of this section shall have effect as if the reference to habitual residence included a reference to domicile within the meaning of that law.

(3) In relation to a country comprising...

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