Case No NG16D00437

Neutral Citation Number: [2016] EWFC 67

IN THE HIGH COURT AT BIRMINGHAM 
FAMILY DIVISION
Birmingham Civil Justice Centre
Priory Courts
Bull Street
Birmingham

20th October 2016

Before:

THE HONOURABLE MR JUSTICE FRANCIS

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B
(Applicant)

-v-

L
(Respondent)

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Transcribed from an audio recording by
J L Harpham Limited
Official Court Reporters and Transcribers
55 Queen Street
Sheffield S1 2DX

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APPEARANCES:

For the Applicant: MISS BOND

For the Respondent: MISS CHATTERJEE

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JUDGMENT

20th October 2016

	MR JUSTICE FRANCIS:
1.		B and L were married on 25th May 1995.  On 22nd January 2016 B (to whom I shall refer to henceforth as the wife and L as the husband) issued a petition for divorce.  Jurisdiction was founded pursuant to Article 3(1) of the Council Regulation.  It is useful to go back to basics and remind ourselves of what these familiar provisions say.  Article 3 provides as follows, 
‘In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the member state, (a) in whose territory the spouses are habitually resident.’
And then a number of other additional matters are of course recited.  It is common ground and agreed between the parties that both the husband and the wife are habitually resident in England.  It is therefore clear that pursuant to Article 3(1) this court has jurisdiction to entertain these divorce proceedings.
2.		The husband is a devout Muslim and he has principled objections to divorce pursuant to the Council Regulation in England.  I have the deepest respect for his beliefs.  My job is to apply English law.
3.		The husband has lodged a comprehensive and detailed position statement and skeleton argument and he has been ably represented today by Miss Chatterjee, who has developed on his behalf her principal arguments.  So far as the husband is concerned, he says that he was married pursuant to Sharia law, that is a religious contract, and he contends that only Pakistan has the jurisdiction to hear this divorce.  I make it clear, however, that he does not want to get divorced and does not intend to get divorced.  The consequence, therefore, of his proposition is that the wife, who works and lives in England and pays her taxes in England and is habitually resident here, and domiciled here, at least for tax purposes, should have to travel to Pakistan to secure a divorce.  
4.		That is a submission which carries with it all sorts of very far reaching consequences indeed.  It would mean that she would be subjected to different rules of English law than people of other faiths or other nationalities living here.  It seems to me that the consequence or a consequence of the husband’s submission would be that I would therefore be approving both racial and gender discrimination, which is something that no judge of this country would be prepared to do.  Why do I say that?  Well it would be racial discrimination because what is said is that because the wife has dual nationality, both British and Pakistani, that as a national of Pakistan she should be treated differently from a British citizen who is not a national of Pakistan.  She, the husband contends, should be denied the rights that the Matrimonial Causes Act 1973 (as amended) grants to all British citizens, which is the right to get divorced, subject to fulfilling the necessary conditions, because of her Pakistani nationality.  
5.		Why do I say that it would amount potentially to gender discrimination?  There is no expert evidence before me about the position in Pakistan but it is reasonably clear from what I have been shown that the rights granted to men in Pakistan to secure divorces pursuant to the laws of that country are different from the rights granted to women and that it is more onerous for a woman to secure a divorce in Pakistan than it is for a man.
6.		I have been shown some proposed amendments to sections 5 and 7 of the Muslim Family Ordinance 1961 and the document which appears, starting at section D, page 89 of my bundle, refers to some amendments which were approved by the Commission in Pakistan, and one of those amendments is to section 7, which is to give women the same right of Talaq e Tafweez as men have.  When asked by me whether that approval to those amendments had found its way into Pakistani law, Miss Chatterjee very fairly said to me that she did not know.  What I do read from what seems to be the editors of the relevant text book which has been put before me is that, 
‘The Muslim Family Laws Ordinance 1961 was promulgated inter alia for the proper registration of marriages and divorces, so as to safeguard and protect the rights of women, including their right to maintenance, etc.  This ordinance has been subjected to criticism not only from the point of view of Sharia but the women’s rights activists are also not fully satisfied with it.  This law has been reviewed time and again by the Council of Islamic Ideology and the Secretariat of the Law & Justice Commission of Pakistan and amendments have been proposed to certain provisions thereof.  Some of its provisions have been declared by the Federal Sharia Court as repugnant to the injunctions of Islam and appeal against the judgment is pending in the Supreme Court.  However, sections 5 and 7 of the Ordinance need to be reviewed and reformed.’
And then there is the suggested amendment to section 7, to which I have referred, and I see a note at the end of this, what appears again to be some editorial comment on the textbook,
‘The Commission, after deliberations, approved the proposal.’ 
7.		I do not know whether that approval has found its way into the law of Pakistan or not.  I do not know whether women have the same right to Talaq in Pakistan as men do.  I have been given no expert evidence at all about the state of family law in Pakistan.  This is the husband’s case, he has to prove it, and his failure to produce any expert evidence is manifest and important in my judgment.
8.		So far as I am concerned there is at least substantial evidence to suggest that women do not enjoy the same rights in Pakistan to secure a divorce as men do and I am satisfied that a second consequence of applying the finding that it has been asked for me to find is that I would be subjecting women of Pakistani nationality living in this country to the potential difficulty of gender discrimination as well as racial discrimination.
9.		Miss Chatterjee very boldly submits to me that if that is a consequence of my application of the law, and I paraphrase, “that is too bad because I have to apply the law.”  She takes me to the Muslim Family Law Ordinance of 1961, paragraph 1(2) of that Ordinance says that it extends to the whole of Pakistan and applies to all Muslim citizens of Pakistan wherever they may be, and so she says it catches not only those citizens of Pakistan who live there but citizens of Pakistan who live elsewhere and by definition therefore the husband and wife in this case; Miss Chatterjee says that although they live in England, they are caught by section 1(2), and I entirely accept that on the face of it that submission appears to be correct.
10.		Section 3, subsection 1 of the Ordinance provides that, 
‘The provisions of this Ordinance shall have effect notwithstanding any law, custom or usage and the registration of Muslim marriages shall take place only in accordance with these provisions.’
Section 7(2) of the Ordinance, which deals with Talaq, provides,
‘Whoever contravenes the provisions of subsection 1 shall be punishable with simple imprisonment for a term which may extend to one year with fine which may extend to 5,000 rupees, or with both.’
Subsection 1 of Section 7 of the Ordinance says that, 
‘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 a notice in writing that having done so and shall supply thereof to the wife.’
It is that Section 7 I should say in parenthesis that may or may not have been amended as a result of the deliberations of the Commission to which I have just referred.
11.		And so, argues Miss Chatterjee for the husband, if there is a divorce in this country pursuant to the jurisdiction granted to which I have referred, Article 3(1), Brussels II (revised), I would be placing the husband in a position where he would be committing a criminal offence under Pakistani law and would, if travelling there, be liable to be imprisoned or fined or both.  That proposition is unsupported by any expert opinion.  If correct, it means that any Pakistani national living in England, having secured a divorce pursuant to the laws of England and Wales, would have committed and would presumably still be committing a criminal offence.  It is not for me to make any findings in respect of that, other than to express my surprise, (a) that that could possibly be true, and (b) that if the husband wants to assert that it is true that he has come equipped with no expert evidence at all to establish it.
12.		As a Judge sitting in the High Court in Birmingham my job is to apply the law of England and Wales.  I am absolutely satisfied that Article 3(1) of Brussels II (revised) grants this court jurisdiction to hear these divorce proceedings, the wife is a domicile of England and habitually resident in England and Wales, it is her right to seek a divorce pursuant to the provisions of the Matrimonial Causes Act (as amended), jurisdiction having been granted by the Article of Brussels II (revised), to which I have referred and therefore the husband’s claim is dismissed.

DRAFT JUDGMENT
MR JUSTICE FRANCIS:
13.		This is the second judgment now that I am giving in this case, B v L, and I am going to refer again to B as the wife and L as the husband, for they are still married.
14.		Having determined that this court plainly does have jurisdiction to hear the wife’s divorce petition, it is now submitted to me on behalf of the husband by Miss Chatterjee that following the very familiar principles of Spiliada and the forum non conveniens rules, I should determine that the proper forum for the determination of these parties’ divorce is Pakistan.
15.		I do not go back over the history which I referred to in my earlier judgment but highly material is the fact that both the husband and the wife live and work and are habitually resident in England and Wales, albeit that they are also holders of Pakistani passports and have the right to reside there.  The fact is that they do not reside there they reside here in England.
16.		The wife’s petition, based on irretrievable breakdown, evidenced by the husband’s unreasonable behaviour, contains a few anodyne allegations of unreasonable behaviour against the husband.  If he chooses to defend it and has permission to defend it, for his time for filing and answer has already expired and I will be dealing with that, I suspect, later today, then the only witnesses to the petition, it seems to me, would be the husband and the wife.  I may be wrong about that but I find it certainly has not been suggested to me that there will be any witnesses who would be called who live anywhere other than in England.  The primary witnesses, of course, would be the husband and the wife themselves, who of course live here in England.
17.		So far as the assets are concerned, I am told that the majority of the assets are in England, they have a property each where they reside.  They both work in extremely responsible positions in the medical profession for the NHS, they both have NHS salaries, I do not know whether either of them has private income as well but clearly the money that they earn is earned here and the taxes that they pay are paid here.  They each have pensions and I would expect, although I have not got any detail about this, that working for the NHS they have valuable pensions, it may or may not be that in due course one or other of them will want to make a pension sharing claim against the other.  I am told by Miss Chatterjee on behalf of the husband that he will say that there is a property in Pakistan, although that seems to be somewhat in dispute. 
18.		I have been taken to the relevant statute in Pakistan, to which reference was already made in my earlier judgment, which appears to suggest that the Courts of Pakistan have the power to make orders for maintenance and interim maintenance and for the distribution of capital.  It is not at all clear from what I have read that they have any power in relation to pensions.  
19.		I am bound to say that I find the proposition that an applicant, were there to be one, for interim maintenance or maintenance pending suit, or indeed maintenance, based on needs as such a claim would be in England, the idea that such a claimant should have to go to Pakistan to pursue that claim is, I am afraid, one which is a borderline and outrageous proposition.  One only has to say it to realise how remarkable it is that Pakistani lawyers would be engaged to argue before a Pakistani Court about the distribution of English income to be spent in England.
20.		There is one proposition which Miss Chatterjee makes which has potential merit in it, and it is one that I have already addressed in my earlier judgment, which is the suggestion that by proceeding in England the husband is in breach of the Pakistani law and is a criminal under their law.  I do not need to amplify this point any more because I have already dealt with it in my earlier judgment.  If the husband wants me to say that this country should not deal with this very English divorce, if I may say so without any disrespect at all to the parties’ Pakistani dual nationality, if the husband wants me to find that this divorce should be disallowed in this country and it should be proceeding in Pakistan on that basis alone, that is that he would be a criminal if he divorced in England, then he should have come here equipped with hard law, an expert report, which he could have applied for pursuant to Part 25, to show that this unusual, if unique, proposition of his is a correct one.  He is asking me, through his counsel, to make all sorts of assumptions and I am not making any assumptions, I am going to apply the law of England and Wales, which is where this case is being heard.  I have absolutely no doubt at all that the proper forum for this parties’ divorce is England and I think therefore I now need to go onto the next phase because I think there will be further applications to follow.

	DRAFT JUDGMENT
MR JUSTICE FRANCIS:
21.		This is now my third judgment in this case of B v L.  I am not going to recite again the background or the chronology save as relevant to this part of the case, which is the applications by the husband to set aside the certificate of entitlement to a decree nisi.  I have already given some of the background to this matter.  What I have not yet referred to, because it was not material to the earlier judgments that I gave, is that there are three children of the family, in fact the oldest of whom is now, I think, sixteen and then there are twins, who are to be fifteen next month.  Plainly there are therefore relevant children of the family, albeit that I am not dealing with an application under the Children Act.
22.		The relevant chronology is as follows, that on 14th December 2015 the wife’s solicitors wrote to the husband and on 5th January 2016 they sent him a draft petition for divorce based on the husband’s alleged unreasonable behaviour and in accordance with proper protocol a draft was sent to him.  On 12th January the husband’s solicitors wrote back confirming that they were acting, the husband therefore had representation at the relevant times.  
23.		On 20th January the petition was lodged with the court and issued on the 22nd, posted to the husband on 22nd.  The chronology prepared on behalf of the wife suggests that it was received by him on the 25th.  If I look at B10 I see that when his acknowledgement of service was filed, in answer to the question, ‘On which date and at what address you receive the petition?’ he said, it looks to me more like the 26th actually than the 25th, but it matters not which of those two dates it was.  
24.		The acknowledgement of service should have been filed, according to the wife’s chronology, on 1st February, DDJ Evans said 2nd, and I suspect the reason that she said 2nd not the 1st that I think it was the 26th January that the husband said he received the petition, not 25th, but, as I have said, that difference of a day makes no difference at all to the issues that I have to deal with.  The answer should therefore have been filed by either 22nd or 23rd February and it was not.  
25.		On 17th March the husband signed the acknowledgement of service.  He challenged jurisdiction, a matter which I have dealt with in the first of the three judgments that I have given today.  On 17th March his solicitors wrote enclosing the acknowledgement of service.  On 24th March the wife’s solicitors wrote to the court explaining that the husband was out of time to defend the petition and they applied, as they were entitled to, for a decree nisi under the special procedure.  They have been criticised by counsel for the husband for taking that step when they knew that the husband was contesting jurisdiction.  It seems to me that although not every solicitor would have done what they did, they were within their rights, as a matter of their legal rights, in taking the step that they took.  The wife knew that the husband was going to raise principled objections to divorce and she was entitled to take such steps as were available to her to try and progress matters.
26.		On 31st March the husband’s solicitor wrote to the court indicating that as jurisdiction was challenged it was not their intention to file an answer at that time.  That is a surprising position for them to have taken.
27.		On 5th April 2016 the certificate of entitlement to a decree was granted, indicating that the decree nisi would be pronounced on 28th April.  After that, for reasons that I have dealt with in my earlier judgments, the whole matter was put on hold pending the hearing of the husband’s case as to jurisdiction.
28.		The husband has had the opportunity throughout to apply for relief from sanctions.  The sanctions in this case, I agree with Miss Chatterjee, are severe, because the consequence of the husband’s failure to comply with the time limits are that he faces the court granting a certificate of entitlement to a decree and granting a decree nisi, and I accept the proposition that has been made that that is a life changing status for the husband.  I also recognise that the husband has principled objections to being divorced.  He asserts that the marriage has not irretrievably broken down.  That is an assertion which I find difficult to take very seriously in circumstances where the parties have now been separated for a very long time, but I entirely accept, and I have already indicated in my earlier judgments that I respect his principled objection to being divorced and that is obviously a highly material part of the background of this case.  I, of course, deal not with morals, beliefs, views or religion but with the law.  My duty is to apply the law.
29.		Paragraph 4.6 of the Family Procedure Rules 2010 provides, under the heading, Relief from Sanctions.  
‘(1)  On an application for relief from any sanction imposed for a failure to comply with any rule, practice direction or court order, the court will consider all the circumstances, including, (a) in the interests of the administration of justice; (b) whether the application for relief has been made promptly; (c) whether the failure to comply was intentional; (d) whether there is a good explanation for the failure; (e) the extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol; (f) whether the failure to comply was caused by the party or the party’s legal representative; (g) whether the hearing date or the likely date can still be met if relief is granted; (h) the effect which the failure to comply had on each party; and (i) the effect which the granting of relief would have on each party or a child whose interest the court considers relevant.’
And then it says in (2), 
‘An application for relief must be supported by evidence.’
30.		The husband has never made an application for relief from relief from sanctions but Miss Chatterjee, not unreasonably, invites me to treat her as having, albeit late in the day, made the application today.  I am prepared to dispense with the formality of the formal written application, I have even dispensed with the formality of oral evidence, not least because I have substantial written evidence from both parties here and I take the view that everything that the husband would have said, had he filed a statement in support of an application for relief from sanctions, has been said by him in the statements that have been filed and the comprehensive position statements that have been filed on his behalf, and also he has been ably represented throughout today by Miss Chatterjee, so I am satisfied that everything that could have been said on his behalf has been said and therefore I am against Miss Bond when she says to me that I should not consider this as being an application for relief from sanctions.  
31.		It is therefore my duty to consider these subparagraphs, which I do shortly.  I start with the interest of the administration of justice.  It seems to me that this is a significant point in the husband’s favour that not giving him relief will, in all probability, lead to a decree nisi of divorce and I accept that that is something that he does not want and something that is highly significant in his life, and I have already agreed with the use of the words ‘life changing’.
32.		Against that, both parties agree, or both counsel agree, that I have to have in mind here the overriding objective.  There are three principal headings of that, which are fairness, delay and cost.  I will come back to deal with those in another context later but I think in my judgment the interests of the administration of justice weigh in the husband’s favour but balance in the wife’s favour as well because she is entitled to proceed towards a decree of divorce on her petition, which is, as I have indicated, now already old.
33.		Secondly, whether the application for relief has been made promptly.  It has not been.  It has been made at the 11th hour and the 59th minute in court today.
34.		(c) Whether the failure to comply was intentional.  The husband has been advised at all times and would have been likely to be advised properly in this case and I am prepared to accept that I cannot find that his delay was intentional, there is no evidence either way there and it would be unfair for me to find that he deliberately did not apply for relief from sanctions.  I do not expect that he is familiar with 4.6 of the Family Procedure Rules, who would be, apart from a family lawyer?
35.		(d)  Whether there is a good explanation for the failure.  There is not really any explanation for the failure at all, save that this is a husband who has a principled and reasonable objection to divorce.  That does not explain the failure, however, to apply for relief.
36.		(e)  The extent to which the party in default has complied with other rules, practice directions, court orders and any relevant pre-action protocol.  The husband has been out of time in many steps that he should have taken.  He acknowledged service of the divorce but it is really hard to see why an answer could not have been filed timeously or why he could not have complied with other timetables, but I do not think that this particular subparagraph, (e), is going to be in any way determinative of what I have to do.
37.		(f) Whether the failure to comply was caused by the party or the party’s legal representative.  Without trespassing into areas of legal professional privilege, I do not know where blame lies but I have not heard Miss Chatterjee seeking to blame those who instruct her rather than the husband, but again I do not think that this particular subparagraph is determinative of what I have to deal with.
38.		(g) Whether the hearing date or the likely hearing date can still be met if relief is granted.  The hearing date has long since passed and there is no doubt at all that granting relief will lead to very significant delay.
39.		(h)  The effect which the failure to comply had on each party.  The effect on each party is absolutely fundamental.  So far as the husband is concerned the effect is that he has imposed upon him a divorce which he does not want.  In contrast, so far as the wife is concerned, she has to continue to suffer inordinate delay at considerable expense.  She is entitled to get on with the rest of her life and at the moment she cannot because of the delay and so I think in terms of the effect which failure to comply has had on each party it is equal on each of them.
40.		Subsection (i) requires me to consider the effect which the granting of relief would have on each party or a child whose interest the court considers relevant.  There are three relevant children here.  The wife, in her second witness statement, says, and it is typical of these cases –  and I do not say that with any sense of criticism, it is what happens - that if the husband does get permission to defend or is going to defend the divorce petition she will – and this is my expression – she will ratchet up the allegations.  Sensibly, and properly, divorcing litigants all over the country are encouraged to file anodyne particulars of behaviour so that these matters can proceed through the courts amicably, or relatively amicably, without having defended divorces, and the higher the status of the allegations the more likely they are to be defended, and so her petition contained what I regard as thoroughly anodyne behaviour allegations.  And crucially they contain the statement, which I understand not to be disputed, that the parties have been separated since 6th July 2015, so that is fifteen months.  I have no doubt, as in most of these cases, that if the husband does get leave to defend that she will want to amend her petition to insert more detailed allegations.  There is more than just a hint in this evidence that she has filed that she will be seeking to rely on allegations of domestic violence.  I can think of really nothing much worse for these children, the twins being not yet fifteen years old, than to have their respectable, decent, professionally qualified, hardworking parents, slogging it out in open court, arguing about the past, who did what to whom and when, and I think that it would have a devastating effect on the children who are, although not my paramount concern because it is not an application under the Children Act, who are nevertheless a concern that I have and who plainly, in my judgment, fall within that definition that I have just referred to in rule 4.6 of the Family Procedure Rules.  
41.		I am also entitled, if not bound, to look at how this is likely to play out in the longer term.  There will be a hearing of a defended divorce if the husband’s application is successful.  There will be evidence from each of the parties.  I dismiss completely the suggestion that was put to me by Miss Chatterjee that this would only take a couple of hours.  If each of the parties is going to have their proper say and the parties are going to be cross-examined on what really happened, the minutiae of the uglier disputes in their marriage – I do not say that out of a sense of criticism to them but that is the way it will be – this will probably take a day to be heard.  And ultimately it is not for me to gainsay what a judge might do but it seems to me that a judge is likely to find that the marriage has irretrievably broken down because by the time this gets to court they will have been separated for certainly more than eighteen months, and it seems to me that if one party says, ‘I regard the marriage as over’, you cannot make the party who says that, in this case the wife, go back and live with the husband when she does not want to.  And so a judge, in my judgment, is likely to find that the marriage has broken down irretrievably.  
42.		The judge is then going to look at the particulars that will then be before him or her, which, as I say, will be an expanded version of the particulars in the current petition, and I think it far more likely than not that at least one of the current or new particulars are going to be proved.  That is not to make findings now against the husband, it is simply to state the obvious, which is that these defended divorces do not usually end up with there being no decree.  I would regard, therefore, the idea that I put this off to allow that awful battle to continue would be damaging to the children, damaging to the parties, would cause delay, heartache, upset and very significant expense.
43.		I note the husband’s principled attempt to stop this process and it may be that he would rather come here and lose than not to have tried, and I respect that but I do, I am afraid, regard this application of his as really almost bound to fail.  Therefore I am now going to grant a certificate of entitlement – well I do not know whether I need to grant it, I think I just reinstate the certificate of entitlement to a decree.  I dismiss the husband’s application.  That is probably the right way – thank you Miss Chatterjee.