Shagroon v Sharbatly
| Jurisdiction | England & Wales |
| Judge | Lord Justice Thorpe,Lady Justice Black |
| Judgment Date | 21 November 2012 |
| Neutral Citation | [2012] EWCA Civ 1507 |
| Docket Number | Case No: B6/2012/0974 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 November 2012 |
[2012] EWCA Civ 1507
Lord Justice Thorpe
Lady Justice Black
and
Mr Justice Hedley
Case No: B6/2012/0974
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MR RICHARD ANELAY QC
SITTING AS A DEPUTY JUDGE
FD01005848
Royal Courts of Justice
Strand, London, WC2A 2LL
James Turner QC and Deepak Nagpal (instructed by Pinsent Masons LLP) for the Appellant
Nicholas Cusworth QC and Justin Warshaw (instructed by Sears Tooth) for the Respondent
Hearing date: 18th October 2012
This is the appeal from the order of Mr Richard Anelay QC sitting as a deputy High Court judge. The judgment was dated 4 th April 2012.
The essential question raised by the appeal is whether the decision of Holman J in Asma Dukali v Mohamed Lamrani ( Her Majesty's Attorney General intervening) [2012] EWHC 1748 (Fam) was rightly decided. It is agreed at the Bar that if we endorse the conclusion and reasoning of Holman J the appellant is entitled to succeed. The present case is not distinguishable and so the respondent must persuade us that the Asma Dukali case was wrongly decided.
The focus of the judgment of Holman J was section 12 of the Matrimonial and Family Proceedings Act 1984 and that is equally the focus of this appeal.
To give my judgment some context I offer the barest account of the history and background.
For convenience I will call the appellant "the husband". He is a Saudi national of the Muslim faith now 66 years of age.
The respondent, who I will call "the wife", is also a Saudi national aged 47.
On the 2 nd July 1994 the husband, although already married, went through a ceremony at an hotel in London which purported to be an Islamic marriage to the wife. A further obstacle to its recognition in this jurisdiction as a valid marriage is that no attempt was made to comply with the Marriage Act 1949 to 1986 nor was any attempt made to supplement the hotel ceremony with a civil ceremony that complied with English law.
Three children were born of the union and the parties enjoy affluence both in this jurisdiction and also in Saudi Arabia.
The relationship broke down in August 2001 and consequential disputes over the children and over money crystallised in the wife's petition for divorce (subsequently amended to a nullity petition) and the husband's application in wardship for the return of the children to Saudi Arabia.
These proceedings were listed before Kirkwood J on 13 th February 2002. Both husband and wife were represented by leading and junior counsel.
A hard day's negotiation resulted in a compromise. Very briefly stated the wife was to receive outright a house in Jeddah and motor cars as well as generous periodical payments for herself and the children, partly payable in Saudi riyals and partly in sterling.
By way of security for future performance it was agreed that, after the husband had obtained a talaq divorce in their homeland, the wife could issue an application under Part III of the 1984 Act which would be adjourned generally and not activated unless the husband fell into substantial breach.
This security was subsequently put in place. In March 2002 the husband pronounced the talaq, in August 2002 the wife issued an application under Part III, and in December 2002 that application was adjourned generally by agreement, that order being made by my Lord, Hedley J.
Prior to that hearing there had been some rumblings which soon erupted into heated disputes about almost every aspect of the financial relationship created by the consent order of the 13 th February 2002.
Consequently the wife sought to activate her Part III claim. There were various case management orders. Both parties were represented by leading counsel until the final hearing which was listed before Mr Anelay.
Shortly before that hearing the husband's solicitors came off the record. The wife's solicitors then refused the husband's request for an adjournment as did Mr Anelay on the 27 th March 2012.
A one-sided hearing developed which required only one of the four days allotted. However, Mr Anelay had before him the skeleton argument settled by Mr James Turner QC before his instructing solicitors came off the record.
There were many issues put before Mr Anelay for his decision, not the least of which was whether the order of 13 th February 2002 had expressly or impliedly granted the wife leave to bring the Part III application, as section 13 of the 1984 Act requires.
However, Mr Turner's skeleton took a more fundamental point. The submission is clearly recorded by Mr Anelay at para 52 of his judgment and rejected in the following paragraph. I cite the essential passage:—
"52. Mr Turner QC, if he had been present at the latest hearing, would have sought to submit that Cambridge Gate was not a matrimonial home at any stage during the " marriage" because such marriage was polygamous and as such was not recognised by English Law. Equally, he would have advanced that argument in support of a submission that the mother was not entitled to any relief because the talaq was not pronounced in respect of a marriage which was recognised by English Law. I prefer the submission of Mr Cusworth who, in my judgment, correctly submitted that the jurisdiction under Part III of the 1984 Act is exercised in respect of a marriage which " has been dissolved or annulled…by means of judicial or other proceedings in an overseas country and the divorce, annulment…is entitled to be recognised as valid in England and Wales" see s12 (1) of the 1984 Act.
53. I am satisfied that there irrevocable talaq prounounced by the Father is valid under Saudi law. In line with the decision of His Honour Judge Horowitz QC in H v S [2011] EWHC B23 (Fam) which I respectfully follow, the talaq is entitled to be recognised as valid in England and Wales. In my judgment, it is the validity of the overseas divorce or annulment which is the crucial matter and not the validity of the marriage under English Law."
Of course Mr Anelay did not have the advantage of oral submissions from Mr Turner nor did he have the judgment of Mr Justice Holman which had been given only a few days earlier on the 15 th March.
The effect of the order of Mr Anelay was to confirm that the wife's application was well-founded, that the husband's jurisdictional challenge failed and that a trial on the merits should follow with a five day time estimate.
That brought the husband back into the lists with an appellant's notice dated 30 th April 2012. Having considered Mr Turner's skeleton argument of the 21 st May I granted permission to appeal jurisdictional issues by my order of 1 st June.
In preparation for the appeal Mr Turner filed a supplemental skeleton to emphasise the importance of the decision of Holman J in Asma Dukali. Mr Cusworth QC responded with a skeleton on the 8 th October. We were thereby furnished with some 70 pages of skeleton argument canvassing a wide range of issues.
So in opening the appeal Mr Turner identified six issues which he intended to develop. However, his essential jurisdictional challenge was expressed in issue 3 (a):—
"Was there ever a marriage sufficient to satisfy the provisions of s.12 of the 1984 Act?"
It was agreed that we should take this as a preliminary point because, if Mr Turner made good his submission, all other issues became irrelevant.
S.12 of the 1984 is in these terms:—
"12 Applications for financial relief after overseas divorce etc
(1) Where –
(a) a marriage has been dissolved or annulled, or the parties to a marriage have been legally separated, by means of judicial or other proceedings in an overseas country, and
(b) the divorce, annulment or legal separation is entitled to be recognised as valid in England and Wales,
either party to the...
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