Quazi v Quazi

I will ask Lord Justice Ormrod to deliver the judgment of the Court.

This is an appeal by the appellant (who will be referred to as "the wife") from an Order made oy Mr Justice Wood on 14th July, 1978, on a petition by the respondent (who will be referred to as "the husband"), praying for certain declarations relating to his matrimonial status. At the conclusion of a long and very careful analysis of the facts and the relevant law, the learned Judge granted to the husband two declarations which are material to this appeal, namely:- (a) that the marriage between the Petitioner and the Respondent was dissolved by Khula in Bangkok, Thailand, on 22nd March 1968, and (b) that, alternatively, the marriage was dissolved by Talaq pronounced three times in Karachi in July 1974 and confirmed by the Court of viii Senior Civil Judge First Class Karachi on 18th February 1975.

This litigation has been going on since December 1974, and has occupied no less than 14 working days in the Court below and 7 days in this Court. It has involved five experts in foreign law, three in Thailand law, and two in Pakistan law, and a number of English lawyers. It has led to the expenditure, mostly out of the Legal Aid Fund, of very large sums of money and to a disproportionate amount of intellectual effort to resolve one practical question: Is there Jurisdiction in the English Court to dissolve this marriage, and make consequential Orders relating to the ownership or occupation of the house in Wimbledon belonging to the husband in which the wife is, and has been, living with the son of the marriage, since June 1974, and for their financial support? These heavy and expensive labours have had to be undertaken because there is no statutory provision toenable the Courts in this country to deal with ancillary relief after divorce unless a decree is granted in this country, notwithstanding that the persons concerned and the property are within the territorial jurisdiction. So it becomes necessary to investigate whether there is a subsisting marriage which the Courts can dissolve and thereafter exercise the powers conferred by the Matrimonial Causes Act, 1973. This involves long and complicated enquiries into the validity of overseas divorces and their recognition in this country. The costs of this case far exceed the value of the house in question and will fall on the British public. The position urgently requires the attention of Parliament with a view to giving power to the Court to deal, much ore simply, with such situations. We would draw attention to the judgment in Torok v. Torok, 1973 I Weekly Law Reports, page 1066, in the hope that something will now be done to avoid such situations in the future.

The Facts.

The facts, in skeleton form, are as follows. Both parties were born in Aurangabad in the former State of Hyderabad. Both are Muslims. They married on 24th November 1963. They moved first to Dacca in East Pakistan in 1964, and then to Bangkok in January 1965. The husband was an executive of a company operating jute mills. In Bangkok, the marriage came under strain and on 22nd March 1968 they made a khula. This is a form of divorce- under Muslim law which is initiated by the wife and agreed to by the husband. It consists of a written statement by the wife to the effect that she has come to the conclusion that she must put an end to her married life and live among her relatives and only wants "Khula" from her husband, together with a written statement by the husband accepting theposition, and stating that all her rights against im as a wife have ceased. However, they continued to live together under the same roof. In June 1970 they moved to Penang, where they continued to live, outwardly, as husband and wife, though it is said that there were no sexual relations between them. In February 1973) the husband went to Karachi. The wife followed him to Karachi, where they spent one night in separate rooms in the house of a relative, thereafter living separately in Karachi for a few weeks.

In March 1973 the husband came to London, where he has been ever since, though travelling freely about the world from time to time. The son was sent to England in April 1973 for his education. Other members of the husband's family Joined them. In August 1973 the husband bought a house, 232 Durnsford Road, Wimbledon. On 7th June 1974, the husband wrote to his wife, in Karachi, a letter referring to the Khula which he obviously thought was ineffective and saying that he was going to give her a divorce. The wife's response was to come to London, where she arrived on 17th June 1974, and went to live at 232 Durnsford Road, presumably as an unwelcome guest. On 9th July, the husband flew to Karachi, and on 12th July 1974 he pronounced the talaq, in writing before two witnesses, saying in effect "I divorce you" three times. Notice of this was sent to the wife at 232 Durnsforc Hoad, Wimbledon, and at an address in Karachi. Notice was also sent to the Chairman of the Union Committee of the viii Senior Civil Judge in Karachi.

Eventually the husband returned to England. He, the wife, and the boy, and some other members of the family were still living at 232 Durnsford Road up to the time of the hearing in the Court below.

On 23rd December 1974, the wife presented a petition for divorce in this country. This was subsequently stayed to give the husband an opportunity to present a petition himself, asking for a declaration that his marriage was lavfully dissolved either by the khula in Bangkok on 22nd March 1968 or by the talaq in Karachi on 12th July, 1974.

The appeal raises a difficult question of construction, arising out of the Recognition of Divorces and Legal Separations Act, 1971 as well as a multiplicity of questions of Pakistani and Thai law. It is the first occasion on which the Court of Appeal has had to consider and interpret this enactment, which was passed to simplify the English common law rules relating to the recognition of foreign divorces. So far from simplifying the former rules, the effect of this Act and the later Domicile and Matrimonial Proceedings Act, 1973, has been to create a series of new legal conundrums which are extremely difficult to resolve. The resulting difficulties have been fully demonstrated by Dr North in Chapter 11 of his book "The Private International Law of Matrimonial Causes in the British Isles & northern Ireland"

We think that the best way of approaching the problem is to begin by considering the legislative history of the two Acts, and the mischief at which each was directed. The Act of 1971 (the Recognition Act) was passed as a consequence of the Hague Convention on Recognition of Divorces and Legal Separations 1968, to which Great Britain was a signatory, together with most of the European States and Israel, Turkey and the United Arab Republic. This Convention provided for the mutual recognition of divorces obtained in the Contracting States: (see Article 1). The Act, however, goes much further. It provides a code of rules for recognition of overseas divorces generally. This is the sourceof some of the difficulties in interpretation and application. The effect of the rules contained in sections 2 to 5 of this Act is to extend recognition to a wide range of overseas divorces and to enable persons domiciled, or habitually resident, in this country to obtain recognition in this country for such divorces, while section 6, in its original form, preserved the Common Law recognition rules for persons domiciled overseas. The primary object of the Act was to reduce, as far as possible, the number of so-called "limping marriages", but its effect was probably to enable significant numbers of persons domiciled or habitually resident in this country to avoid taking divorce proceedings in England, and so to evade the provisions of the Matrimonial Causes Act, 1973, relating to financial provision and property adjustment orders. No doubt it has had inconvenient consequences in other areas of the law.

The 1973 Act (the Domicile Act) was passed, primarily, to abolish the dependent domicile of wives and to make consequential amendments to the Common Law Rules, preserved by section 6 of the 1971 Act. But section 16 was obviously intended to control some of the undesired effects, actual or potential, of the Recognition Act, in respect of persons domiciled or habitually resident here, by limiting the extent to which they can resort to other countries to obtain their divorces. The section is difficult to construe, particularly in relation to sections 2 to 5 of the 1971 Act. Its effect is to introduce special rules for divorces obtained in foreign countries, where both the parties have been habitually resident in the United Kingdom for one year immediately preceding the institution of the divorce proceedings. In the result, the recognition rules applicable where the parties have been habitually resident in this countryfor one year before the institution of the overseas proceedings are narrower than those which apply to non-residents.

This dichotomy lies at the root of the problem of the recognition of divorces obtained in other countries. It is one thing to recognise the status, determined by his personal law, of & a person entering this country, or more or less loosely connected with it; it is...