Radwan v Radwan
| Jurisdiction | England & Wales |
| Judgment Date | 11 May 1972 |
| Date | 11 May 1972 |
| Court | Family Division |
Husband and Wife - Divorce - Foreign decree, validity - Talaq divorce - Egyptian husband domiciled in England - Husband obtaining talaq divorce in United Arab Republic consulate in London - Whether recognised in Great Britain -
In 1951 the parties, an English woman and an Egyptian, entered into a contract of polygamous marriage according to Muslim law at the Egyptian Consulate in Paris. The matrimonial home was established in Egypt. In 1956, the parties came to England and in 1959 the husband decided to remain permanently so that his domicile of choice became English. In 1970, the husband obtained a talaq divorce at the Consulate General of the United Arab Republic in London. In divorce proceedings by the wife on the ground of cruelty and a cross-prayer by the husband on the ground that the marriage had irretrievably broken down, the question arose whether the English courts should recognise the talaq divorce.
On the preliminary question whether the premises of the Consulate General were within or outside the British Isles for the purpose of recognition of the divorce under the Recognition of Divorce and Legal Separations Act 1971F1:—
Held, that diplomatic premises were part of the territory of the receiving state and not of the sending state and therefore the decree of divorce obtained by the husband from the Consulate General of the United Arab Republic in London could not be recognised under the Act of 1971 as it was not obtained by judicial or other proceedings in a country outside the British Isles.
The following cases are referred to in the judgment:
Afghan Embassy Case, Annual Digest, 1933–1934, Case No. 166.
Ali v. Ali [
Basiliadis (
Couhi In re, Annual Digest,1922, Case No. 218.
Mickilchinkoff (
Moriggi, In re, Annual Digest, 1938–1940, Case No. 172.
Munir Pasha v. Aristarchi Bey [
Petroff, Ex parte (unreported), 1971 (Australia).
Qureshi v. Qureshi [
Sun Yat Sen Case (unreported), 1896.
Trenta v. Ragonesi, Annual Digest, 1938–1940, Case No. 173.
Trochanoff [
Varanand v. Varanand, The Times, July 25, 1964.
The following additional case was cited in argument:
Public Prosecutor v. Pacory, Annual Digest, 1933–1934, Case No. 170.
PETITION
On November 25, 1970, the wife presented a petition for divorce on the ground of cruelty. By paragraph 1 of the petition it was stated that the parties had married at the Egyptian Consulate in Paris on September 27, 1951, and by paragraph 7 (ii) that, on April 1, 1970, the husband had obtained a decree of divorce in the Consulate-General of the United Arab Republic in London. The husband by his answer on April 24, 1971, denied the cruelty and cross-prayed for a decree on the ground that the marriage had irretrievably broken down under section 2 (1) (b) of the
The facts are stated in the judgment of Cumming-Bruce J.
Gayle Hallon for the wife.
E. V. Paynter Reece for the husband.
Anthony Ewbank Q.C. for the Queen's Proctor as amicus curiae.
CUMMING BRUCE J. Mrs. Mary Isobel Radwan filed a petition for dissolution of marriage on November 27, 1970, seeking dissolution on the ground of her husband's cruelty. By an answer filed on April 24, 1971, the husband respondent denied the cruelty and alleged that the marriage had irretrievably broken down because the petitioner had behaved in such a way that he could not reasonably be expected to live with her.
In the petition the wife alleged that the husband was domiciled in England; in the alternative that she had a qualification for proceedings by residence. In his answer the husband alleged that he was domiciled in England.
By her petition, in paragraph 7 (ii), where the wife's counsel was pleading the previous proceedings, it was pleaded as follows: “On or about April 1, 1970, the respondent purported to obtain a final decree of divorce at the Consulate General of the United Arab Republic in London by talaq,” and there was no traverse of that contention in the answer.
There were supplemental pleadings and proceedings whereby the children of the family, eight in number, were made wards of court, and the circumstances in which the parties and the children are living are such that ever since November 1970 it has been highly desirable that these proceedings should be brought to a termination. I do not know the practical difficulties which have given rise to the delay. I am satisfied from what I have heard that from the point of view of all the members of the family the delay that has already occurred is nothing short of a disaster.
Proceedings eventually came on before Hollings J. in February. He then heard the evidence of the husband as to nationality and domicile, and began to investigate the fact alleged in the pleadings that the husband had obtained a final decree of divorce by talaq in April 1970. But Hollings J. decided that that raised a problem which had not been determined before in England, a problem of some general importance, namely, whether the premises of the Egyptian Consulate General in London are strictly extraterritorial in the sense that they are the territory of the sending state and not of the receiving state. Before Hollings J. both the wife and the husband had contended that the divorce by talaq should not be recognised by English law, and therefore there was no argument supporting the contention, or raising argument on the problem, whether the Egyptian Consulate General in London was Egyptian territory or English territory. It was in that situation that Hollings J. stated that he would prefer to hear argument on the adversary system in order to be confident that he had all the arguments before him. He invited the Queen's Proctor to instruct counsel to argue the actual point as amicus. But when I heard the argument of Mr. Ewbank as amicus it emerged that he was unable to put forward any sustained argument supporting the proposition that the territory of the Egyptian Consulate General in London was Egyptian territory, and it follows that though I have had argument to which I am indebted from Mr. Ewbank he did not feel in a position to offer any sustained argument supporting the proposition which Hollings J. I think expected him to present.
There is another matter with which I should deal before I come to the reasons for my decision. The petition alleges a marriage, at the Egyptian Consulate in Paris. There is in evidence a notarial document exhibiting a purported contract of marriage dated September 27, 1951, with a translation, whereby the parties purported to enter into a contract of potentially polygamous marriage according to Mohammedan law. No evidence of a person expert in foreign law has yet been put before the court to the effect that the marriage was formally valid in accordance with the lex loci contractus; and no argument has yet been addressed to the court upon the proper law governing the formation of the marriage.
I am told by Mr. Paynter Reece, for the husband, that he now expects to submit that the French law is the proper law of formation of the marriage, and that this marriage was not valid by French law. No notice of this argument had been given. It is not raised in the pleadings. I am confident Hollings J. was quite unaware of the fact that there was any doubt at all about the validity of the ceremony of marriage.
So he released the case to enable argument upon the preliminary point of which he was aware, namely, recognition of the talaq divorce in the Egyptian Consulate in London in 1970, referred to in paragraph 7 (ii) of the petition. This preliminary question has been argued before me. At the end of the argument I stated that this court could not recognise the talaq divorce and that I would give my reasons today. I also stated that in the light of my decision I would not hear argument upon the question of discretionary refusal to recognise pursuant to section o (2) of the
It was when I stated my...
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Asma Dukali (Applicant) Mohamed Lamrani (Respondent) HM Attorney General (Intervener)
...are part of the territory of the receiving State and not of the sending State. This was firmly established by the case of Radwan v Radwan [1973] Fam 24 which has been invariably followed and applied without question ever since. 24 In short, this was a marriage that was contracted wholly in ......
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