R v Secretary of State for the Home Department ex parte Ghulam Fatima
| Jurisdiction | UK Non-devolved |
| Judge | Lord MacKay of Clashfern,Lord Brandon of Oakbrook,Lord Templeman,Lord Ackner,Lord Keith of Kinkel |
| Judgment Date | 10 April 1986 |
| Date | 10 April 1986 |
| Court | House of Lords |
[1986] UKHL J0410-1
House of Lords
Lord Keith of Kinkel
Lord Brandon of Oakbrook
Lord Templeman
Lord Mackay of Clashfern
Lord Ackner
My Lords,
I have had the opportunity of considering in draft the speech to be delivered by my noble and learned friend Lord Ackner. I agree with it, and for the reasons he gives would dismiss the appeal.
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend, Lord Ackner. I agree with it, and for the reasons which he gives I would dismiss the appeal.
My Lords,
For the reasons given in a speech prepared by my noble and learned friend, Lord Ackner, I would dismiss this appeal.
My Lords,
I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Ackner, and for the reasons which he gives I too would dismiss this appeal.
My Lords,
Ghulam Fatima, the appellant, is a national of Pakistan. Her parents arranged for her to marry Mohammed Afzal who since 1968 has been living in the United Kingdom. On 31 July 1982 she arrived at Heathrow Airport as the fiancée of Mohammed Afzal in order to marry him. He is also a Pakistani national and was married in January 1968 in Pakistan. He claimed that his marriage had been effectively dissolved, but he failed to persuade the immigration officer that the divorce would be recognised in the United Kingdom. The appellant was accordingly refused leave to enter the United Kingdom on the ground that the immigration officer was not satisfied that her intended marriage could take place within a reasonable time.
Subsequently the appellant was granted leave to move for judicial review of the immigration officer's decision. Her motion was dismissed by Taylor J. in a reserved judgment delivered on 11 July 1983. Against this decision she unsuccessfully appealed to the Court of Appeal. The essential question for your Lordships' decision is whether the divorce obtained by Mohammed Afzal is to be recognised as a valid overseas divorce under section 2 of the Recognition of Divorces and Legal Separations Act 1971 ("the Recognition Act").
The talaq divorce
In Pakistan the law relating to divorce is the Islamic law as modified by the Muslim Family Laws Ordinance 1961. In traditional Islamic law the husband has the right unilaterally to repudiate his wife, without showing cause and without recourse to a court of law. Such divorce is effected by the announcement of the formula of repudiation, a talaq, and in traditional law a divorce by talaq would take the simple form of the husband announcing talaq three times. The divorce then becomes immediately effective and irrevocable. Such a form of talaq has been called "a bare talaq." Although it is still effective in some countries, for example, Dubai, section 7 of the Ordinance provides:
"(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the chairman notice in writing of his having done so, and shall supply a copy thereof to the wife. (2) Whoever contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year or with fine which may extend to 5,000 rupees or with both. (3) Save as provided in subsection (5), a talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of 90 days from the day on which notice under subsection (1) is delivered to the chairman. (4) Within 30 days of the receipt of notice under subsection (1), the chairman shall constitute an arbitration council for the purpose of bringing about a reconciliation between the parties, and the arbitration council shall take all steps necessary to bring about such reconciliation. (5) If the wife be pregnant at the time talaq is pronounced talaq shall not be effective until the period mentioned in subsection (3) or the pregnancy, whichever be later, ends. (6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective."
"The chairman" refers to the chairman of the relevant local union council in Pakistan. Although he is required to convene an arbitration council to attempt the reconciliation of the parties, their attendance is not obligatory and the divorce will become effective, unless the wife is pregnant, once 90 days have elapsed from the date on which the chairman received notice of the talaq.
On 22 May 1978 Mohammed Afzal pronounced talaq against his wife and made a statutory declaration that he had done so before a solicitor in Bolton. Copies of that document were sent to the wife and to the chairman of the relevant union council in Pakistan. As no reconciliation was effected, the marriage was dissolved according to Pakistani law 90 days after the receipt by the chairman of the notice of the talaq.
Recognition of the talaq divorce
The Recognition Act was passed to amend the law relating to the recognition of divorces and legal separations in this country. Section 2 defined "overseas divorces" for the purpose of the Act. The relevant provisions read as follows:
"Sections 3 to 5 of this Act shall have effect … as respects the recognition in Great Britain of the validity of overseas divorces …, that is to say, divorces … 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."
Section 2 must, however, be read together with section 3(1) which provides:
"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 [emphasis added] - ( a) either spouse was habitually resident in that country; or ( b) either spouse was a national of that country."
In an admirably lucid judgment, to which the Court of Appeal paid...
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