England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		12/12/2007

The Hon. Mr Justice Sumner :

Introduction

1. On 20 and 21 November 2007 I heard a petition by Mr H for a declaration that a talaq divorce granted to him in Pakistan on 3 March 1987 and effective from 1 April 1988 was a valid divorce and entitled to recognition in the UK. This is denied by Mrs H who lives in Ilford, Essex at the former matrimonial home. She was married to him on 1 April 1966 in Pakistan where Mr K lives.
2. I heard from the parties, Mr K's brother, and 2 experts on Muslim law. Mr K was represented by Miss Hasan and Mrs K by Mr Leonard. After submissions I reserved judgment. I trust I cause no offence if I refer to the parties as husband and wife.

Summary

3. They started living together in the UK in the summer of 1966. They have four children, who are now all over 18 years of age. In October 1986 the husband returned to Pakistan. The frequency of his returns to the UK after that is in dispute.
4. He claims that on 3 March 1987 he obtained a divorce by talaq in the chambers of an attorney, Mr Sial, in Faisalabad. It became effective 90 days after it was received by the chairman of the union council on 31 December 1987. He returned to the UK and visited the wife in March 1998. He gave her a copy of the divorce. None of this is accepted.
5. In October 1992 the husband married for a second time in Pakistan. He has a further four children.
6. There was correspondence between the parties in early 2003 started by the wife in relation to the condition of their home. In his reply the husband said –

"Settlement happens after the divorce. You put the divorce papers in front of me and asked for a divorce. I said to you that as you have portrayed me as a run agate husband in order to claim social security so can you get a divorce on this base. Did you get a divorce?"

7. The wife relies on this as showing that Mr K did not believe himself divorced at that time. He answers by saying that he thought an English divorce was necessary for resolving matters of finance here. I am not persuaded I can place any reliance on this letter one way or the other.
8. In January 2004 the wife petitioned for divorce in the Ilford County court on the grounds of five years separation. Two months later she gave notice of her intention to proceed with an application for ancillary relief.
9. In August 2004 the husband filed an affidavit with the court. He said that he had divorced his wife in Pakistan on 3 March 1987. He had delivered the divorce personally to her when he came to England in 1987. The wife says that she never received this affidavit.
10. A decree nisi was granted in October 2004. The husband appeared at a hearing in December 2004 and in March 2005 issued his present petition. It was served on the Attorney General who, having filed an Answer, has decided to take no further part in the proceedings.
11. During interlocutory proceedings the husband started a claim in the Family Court in Faisalabad, Pakistan seeking a declaration that the talaq was valid. He sought a stay of his present petition. This was refused in July 2006 by Baron J and this hearing was subsequently fixed.

The law

12. It is helpful to have the essential principles in mind before I turn to the evidence. Under s.55 of the Family Law Act 1986 a person may apply for a declaration that the validity of a divorce obtained overseas is entitled to recognition in this country. There is jurisdiction provided one of the parties is domiciled in England and Wales on the date of the application. There is no dispute that the wife is domiciled in the UK.
13. Pursuant to s.46, the validity of an overseas divorce shall be recognised if it is effective under the law of the country in which it was obtained. But at the relevant date either party to the marriage must have been habitually resident or domiciled in the country in which the divorce was obtained. Again it is accepted that the husband was ordinarily resident in Pakistan at the relevant time.
14. By s.51 (3) the validity of an overseas divorce may be refused in the following circumstances. The first ground is if the divorce was obtained "without such steps having been taken for giving notice of the proceedings to a party to the marriage as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken."
15. The second ground is if the divorce was obtained "without a party to the marriage having been given (for any reason other than lack of notice) such opportunity to take part in proceedings as, having regard to those matters, he should reasonably have been given."
16. For the purpose of interpretation of these sections I have been referred to the decision of Hughes J as he then was in El Fadl v El Fadl (2000) 1 FLR 175. The case involved the validity of a talaq pronounced in Lebanon of which the wife was not given notice.
17. It was held that the consent or objection of the wife to the divorce was irrelevant. It was not necessary for her to have notice of the pronounced in order to give effect to the talaq, which had been recorded in the Sharia court in accordance with Lebanese law. That registration was sufficient for the talaq properly to be described as proceedings within s.46. Furthermore, it was not a proper exercise of discretion to refuse a divorce which was valid by the personal law of both parties at the relevant time, as had been known to them for many years.

The issues

18. Apart from the law, the only direct evidence not agreed by the parties is whether the husband served a copy of the divorce decree on the wife in 1987. The main part of the dispute has been whether the husband has shown that his account is true and whether he has proved that the documents he has produced are valid. If the husband does establish his case, it is said that I should nevertheless refuse to recognise the divorce in the exercise of my discretion.

The husband's account

19. He says that in March 1987 he consulted an advocate in Faisalabad, Mr Sial, to see how he could obtain a divorce. He was told that in accordance with the relevant Ordinance (Muslim Family Law Ordinance 1961, ("the MFLO")), he was required to serve a notice on the chairman of the union council where his wife was living. It was sufficient if it was sent to the chairman of the area where her family were living.
20. Mr Sial has sworn 2 affidavits of 16 February and 1 March 2005. In the first he said that he had known the husband as a client and a neighbour for several years. In about March 1987 he discussed with him divorce under Pakistani law, as his wife wanted it this way. He explained the Ordinance.
21. The husband sent notice of talaq to the chairman of the union, and he was with him when he posted a copy of the letter to the wife in the UK. A third copy went to her maternal uncle, who was then head of her family. He confirmed that he subsequently attended the husband's second marriage.
22. In his second affidavit, Mr Sial added that the husband gave written divorce to his wife in his chambers in the presence of two witnesses. He also added that it was in the first week of March 1987 that the husband posted the notice to the chairman in his presence. The two witnesses, Mr Tayyab and Mr Muhammad signed affidavits in identical form saying that they had witnessed the husband's divorce on 3 March 1987. They had signed the divorce paper as witnesses.
23. The husband said he handed a copy of the deed of talaq to the wife when he visited the UK at the end of March 1987 to wind up his affairs. His youngest brother Mr K swore an affidavit in November 2007. The husband called him at the end of March 1987 to say that he was back in London. He went to his home on a Saturday. The husband said in front of his wife that he had handed a copy of the Pakistani divorce to her two or three days ago. She made no comment. He gave evidence about this. It is disputed by the wife that she was told of the divorce or given a copy.

Documents and their interpretation

24. Mr Ian Edge, a practising barrister, was instructed by the Attorney General to give an expert opinion on Pakistani law. He has some 25 years experience of Muslim law and is the founder and co-Director of the Centre of Islamic and Middle East Law in the University of London. He is highly experienced and I found him a reliable witness.
25. He noted that no original talaq document had been produced. However there was a "Divorce statement certificate" (E 90) setting out a talaq pronounced in Faisalabad on the 3 March 1987 and witnessed by the two persons mentioned above whose signature there and on their affidavits appeared to match. There was confirmation on 26 April 2005 by the secretary and chairman of the union council that the divorce document is a copy of that found on the files in Register 22.
26. There is then a hand written paper headed "Minutes of Proceedings dated 16 June 2005" signed by the chairman of the union council on 18 June 2005 (E 99). It said that the divorce notice was received on 31 December 1987 by the then chairman who took no action on it. As the stipulated 90 days had elapsed, and there was no reconciliation, the divorce automatically became effective from 1 April 1988. It is signed by a different chairman from that signature on the document of 26 April 2005.
27. The next document is headed "Statement of Secretary Union Council No 30" (E 97). It recorded the decision of the chairman and indicated that the union council had issued a certificate of effective divorce.
28. The final document at that stage was headed "Certificate of Effective Divorce" (E 91). It certified notice having been given on 31.12.87. The talaq was effective from 1.4.1988. It was signed by the secretary and chairman of the union council number 30. Added in a different coloured ink were the words "furthermore the iddat period of 90 days from 31.12.87 to 31.3.88 has already been completed."
29. Mr Edge explained that traditional procedural rules had been modified by the MFLO. This required a husband after announcement of the talaq to send notice to his wife, and also to the chairman of the local union council. A talaq is not effective until 90 days after the notice has been received by the chairman.
30. Mr Edge raised a number of points about those documents. Mr Sial did not mention the date of the talaq whereas the witnesses did. Only the second affidavit mentioned the timing of sending of the notices as being in the first week in March. They were however only received on 31.12.1987, which cannot be reconciled. Finally, he had not seen a divorce certificate in the form produced on any occasion before, and it had been altered.
31. Those matters gave rise to a little doubt as to the genuineness of the events described. He noted the tendency in Pakistani law to require more than just the decision of the chairman. This he coupled with a recent suggestion of the High Court that effectiveness of the notice must be postponed until the wife had knowledge. He was therefore of the opinion that the documents would not satisfy a Pakistani court that there was a valid divorce in 1987 or 1988.
32. He then received 4 further documents. There was an expert report from an advocate, Mr K, with exhibits. They included a divorce deed of 3.3.1987 (E 31A) as copied in Divorce statement certificate (E 90), a certificate of the chairman of 16.6.2005 (E 35), and a photocopy of a page from a Register of Cases in the union council (E32a and 36a).
33. He said the divorce deed was a crucial document which had originally been missing. It was on official paper and in the form he would expect. Unless challenged he would accept it as valid.

"The above documentation certainly goes a long way towards providing further evidence that the proper and valid talaq was announced in Pakistan on 3 March 1987 and that notice was given to the union chairman in December 1987 (although there is the still no document evidencing the giving of that notice) but for whatever reason a Certificate of Effectiveness was not obtained until 2005."

34. He considered the case one of the most difficult he had had to deal with the terms of documentation. However, on balance of probabilities, he considered that a Pakistani court would accept that there had been a talaq pronounced by the husband with valid notice to the union chairman such that the talaq was effective from 1 April 1988.
35. In evidence he said that there was no copy of the notice to the chairman of the union which was mandatory to be sent. Records of union councils are not always well kept. A lot were missing since the reorganisation of 1990 and 1991.
36. To go through the procedure of talaq with lawyers in chambers was the main way that this was done. If there was no notice to the chairman he looked at the next best evidence, which was E 91, the Certificate of Validity of Divorce. It was the decision of the chairman (E35) that led to the certificate. The certificate is the best evidence.
37. The chairman says that notice was received on 31 December 1987. It suggests that it was there on the register. He must be referring to something. The chairman had been satisfied of the notice. He was satisfied that the Register of Suits, referring as it did to "Old Case 22", was to the case above, which was the Certificate of Effective Divorce (E95).
38. It was fatal to a valid talaq if there was no notice to the chairman. It was not fatal if there was no notice to the wife. This decision and the certificate showed that something had happened. The documents produced by the husband set his mind at rest as he accepted that Mr K had gone to the court and seen the record. Though there are inconsistencies, it had gone some way to satisfy him on the question of genuineness.
39. He accepted that, other than the Register of Suits, there was nothing to say that the notice had been in receipt. Mr K had seen the register which records the documents received.

Mr K, advocate

40. He was instructed by the husband. He prepared a report of 3 June 2006. He was called as a witness and flew from Pakistan to give evidence. I can see no justification for this when his evidence could readily have been given by video or telephone.
41. He is a lawyer. He was in practice for 4 years before sitting as a judge for 31 years ending in 2001 as a senior civil judge.
42. He had seen the original file in the union council which he considered quite old. It seemed to have been prepared in 1987. The copies issued by the secretary and the register entry of receipt of notice of divorce on 31.12.1987 are all genuinely present in the record. He had no hesitation in concluding that the husband effectively divorced his wife on 3.3.1987 and that the divorce between the parties became effective from 1.4.1988.
43. In evidence, he said that he had not given similar opinions before. He had not seen the notice sent to the chairman of the union. He had not looked for it because it was registered there. It was not in his view the most important document when it was already in the register. He knew that Mr Edge had said originally that it was not a valid talaq, but he did not think it was necessary to obtain copies of the notice.
44. He did not consider that it was unusual to have wording added. With Mr Edge he agreed that some judges granted divorces though there had been no notice.

The husband's evidence

45. He said that the wife had asked for a divorce since 1981. He dragged it on till the children grew up. He went to Pakistan in October 1986 expressly to get a divorce. It was at his wife's insistence. His intention was to divorce her. He consulted a lawyer who told him how to execute a divorce in Pakistan. He informed his wife of the divorce and she said "Thank God". He was staying at the former matrimonial home at the time. He had lost his passport, but he had spent two or three months in Pakistan and then come back to England.
46. He had paid the lawyer afterwards. The lawyer arranged the talaq in front of witnesses, it was the normal practice. It was his job to send the notice to the chairman, the lawyer supervised. The Post Office was in front of his office. He told him to post it in his presence. Though on the Divorce Deed (E31a) it says that it was prepared by the conveyancer, he wrote it. He is still there, an old man like him.
47. The witness Mr Tayyab is from the village; about 20 people came from the village. The lawyer was there but he was not sure if he was out when talaq was announced. It was his job not the lawyer to post the notice. Mr Shar wrote the letter and the deed; he is the same person as on the Divorce Deed (E31a). He could have written the talaq but the writer did it on his instructions. The lawyer's job was to check it and sign it in his presence.
48. He sent the notice but did not keep a copy. He had got a copy of the notice in Faisalabad. No one had asked him to bring it. No one asked him for the file.
49. He did not know why the notice had not arrived until December 1987. He did come back in March 1987, and his brother witnessed him telling his wife of the divorce in Pakistan. He had handed her the original. He had given a copy of his affidavit of August 2005 to her solicitors. He had started the proceedings in Pakistan to test the validity of the divorce.

Mr Tariq K

50. He had set out in his statement of 1 November 2007 how, when his brother was in London at the end of March 1987, he went to see him at the former matrimonial home. He said to the wife that he had formally handed a copy of the divorce deed to her two or three days ago.
51. Whilst he said he could not swear to the date, he was himself married in March 1987. This was after the marriage. He was married on 28 March. He did not go away. He did not know that day, but it was probably a Friday. It was no more than two or three weeks after the marriage. He did not see the divorce deed.

The wife's evidence

52. She gave evidence through an interpreter. She said her husband had told her that he could not give her a divorce. She had written about the condition of the house, and he had replied.
53. She said that the marriage was very unhappy. She had not wanted a divorce until 2003. It was a stigma. The marriage had not broken down in 1987. They had been sleeping in separate bedrooms for two or three years before he left. He had stayed with them on two or three occasions.
54. He did not send the talaq. "You can get anything you like in Pakistan. All his family are bloody liars."

Submissions

55. Mr Leonard for the wife said that the notice to the chairman must be given. There was no contemporary document, except the Divorce Deed (E31a). That was inconsistent with the date when it was said to have arrived, nine months later on 31 December 1987. I am not persuaded that, given the circumstances at the time, the delay is important. Nor do I find it significant that on the Register of Suits (E36a) the date of 1987 appears after the reference to divorce on 18. 5. 2005.
56. He said the one missing document was the one they wanted. The decision of the chairman (E 35) only said –

"The document pertaining to notice of divorce were received by my predecessor on 31.12.1987."

57. It was his case that there never had been a divorce. If there was one it would have been nearer to December 1987. There are question marks around all the evidence concerning March 1987.
58. Mr K, the advocate, had not found the notice. But the chairman certified in 2005 of its arrival, and he accepted that it would have been odd if it was not there. The wife says all the documents are forgeries, and the husband is put to proof. He asks what the chairman was looking at which the husband could not find a year later. I think it likely that once Mr K saw it on the register he did not look further.
59. It was not right for the husband to rely on the certificate in 2005 when he had had Mr Edge's advice. Mr K was instructed by him. The turmoil in politics which he raised was not in regard to this but another point.
60. To leave the posting to the client, and be there with him is extraordinary. It is a pity that the file was not produced.
61. The evidence about handing over the talaq in March 1987 was entirely unconvincing as was the meeting with his brother. The brother was struggling to say why it was in March 1987 until he remembered his wedding.
62. The wife did not know of the talaq until 2004 after pressing the husband because of her housing needs and starting proceedings here. The correspondence at the time makes no mention of the divorce which the husband said he had obtained.
63. There are differences between this and the case of El Fadl to which I have referred. The wife was not domiciled in Pakistan in 1987. Here the wife knew of the remarriage but not of the talaq
64. Miss Hasan for the husband said that the court should recognise the talaq of March 1987. Whilst no notice had been produced, s.7 of the MFLO had been complied with. If the husband had not kept a copy he could not be expected to be asked for it 20 years later.
65. It was untenable for the wife to say that all the documents were forgeries. The husband said that there had been turmoil. He had sent notice to the union which had then merged with another.
66. The husband's evidence was to be preferred. The wife had been inconsistent, saying at one stage that the husband had only been back once and then saying he'd been back three times.
67. The husband had remarried in October 1992. If there was no divorce the remarriage was illegal under Sharia law, because it would be adultery. There were social and legal consequences of this and severe penalties for adultery.
68. All the points taken against recognition were cosmetic. There were no grounds for not recognising it even if there had been no service.

Conclusions

69. This has not been an easy case to resolve. I start with the careful approach taken by Mr Edge. He was troubled by the early documents and set out clearly the difficulties that he had experienced. He was rightly influenced by the later documents he saw, because he felt able to rely upon the advocate Mr K giving accurate evidence about what he had seen and producing copies of the documents. I consider that I can rely upon Mr K in this regard.
70. At the end of the day there was only one document missing. It was the notice said by the husband to have been sent by him in March 1987 to the chairman of the union, but not received by him for another nine months. I am satisfied that there is, as identified by Mr Edge, sufficient other documentary reference to establish that it was in fact received. I have difficulty in believing that in 2005 the chairman would have said that the notice of divorce was received by his predecessor on 31.12.1987, unless he was satisfied that that was correct.
71. There is a negative point in favour of the husband's account. If he was retrospectively forging documents to prove his earlier divorce, he would hardly have left out one so important, nor produced those with more than one person's handwriting on them. This is so in particular after he had received Mr Edge's first opinion.
72. I rely upon Mr Edge's final view and find that a talaq was announced in March 1987 and that it would be recognised by a Pakistani court. I am supported in that by three further considerations. The first is the opinion of Mr K who was not as impressive as Mr Edge but had seen the original file.
73. Secondly in relation to the first point, the husband was rightly cross-examined in some detail about his account. Having listened carefully to his evidence and bearing in mind the points that Mr Leonard has made, I have come to the conclusion that his evidence is more likely to be credible than not.
74. Thirdly on my assessment of the husband I think it is unlikely that he would have entered a second marriage without divorcing his first wife. This is so in particular when he was going to continue living in the community where he was known. I do not consider that he would have run the risk associated with such a course.
75. I had been caused greater difficulty in deciding at what time the wife became aware of the divorce. Mr Tariq K's evidence concerned his recalling 20 years later, when his brother called him in, not to witness the handing over of a document, but to hear him say that towards three days before he had told his wife of the divorce. Then, not to remember that the time was so close to his own marriage until he was cross-examined was strange.
76. I was not impressed by the evidence of the wife but nevertheless she started divorce proceedings in 2004, rather than relying upon the Pakistani divorce if she already knew about it. On the other hand, there was no reason for the husband not to have told her if, as I accept, she had been wanting a divorce for some time.
77. I have not found this all easy to reconcile. I have concluded that on balance the husband did tell the wife of the divorce before his remarriage in 1992. It may have been in 1987.
78. I turn to the law. The first question is whether the announcement of the talaq and giving notice to the union council amounts to "proceedings" within s.46 (1) of the Family Law Act 1986. The mere pronouncement of divorce before witnesses has been held not to be enough, Chaudhary v Chaudhary (1985) Fam 19. In that case Balcombe J as he then was said –

"… "proceedings" requires some form of State machinery to be involved in the divorce process: not necessarily machinery established by the state, since existing religious machinery recognised by the state is sufficient… The act or acts of one or both of the parties to the marriage, without more, cannot amount to proceedings; there must be the intervention of some other body, a person with a specific function to fulfil such as the Union Council in the case of the talaq considered in."

79. There is the express provision of the MFLO 1961. Under s.7 it is provided –

"Talaq" "(1) Any man who wishes to divorce his lie wife shall, as soon as may be after the announcement 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."

"Chairman" is defined as the Chairman of the Union Council.

80. Lord Scarman in Quazi v Quazi ((1980) AC 744) said at p824 that the following were capable of qualifying as proceedings –

"… any act or acts, officially recognised as leading to divorce in the country where the divorce was obtained, and which itself is recognised by the law of the country as an effective divorce."

81. I am satisfied that that is the position in Pakistan where notice has been given after talaq to the relevant chairman of the Union Council as I find occurred in 1987. Accordingly I find that what happened here amounts to proceedings for the purpose of S.46 (1).
82. The final question is how I should exercise my discretion in the light of the facts as I have found them to be. The decision of Hughes J in El Fadl is not binding on me but it is of persuasive authority. If I may respectfully say so, I accept his analysis and propose to follow it.
83. Though the wife was not given notice of the divorce nor the opportunity to take part, I rely on the following passage from the judgment of Hughes J.

"… I am satisfied that however much a unilateral divorce without notice may offend English sensibilities, comity between nations and belief systems requires at least this much, that one country should accept the conscientiously held but very different standards of another, where they are applied to those who are domiciled in it (p190)…

I am satisfied that where, as here, the talaq is the prevailing form of divorce in the country of both parties, where it had been validly executed there, so that the marriage is at the end in the country, where it was contracted, and to which both parties belonged and where there is no evidence of forum shopping, not only does public policy not call for non-recognition, in the end it summonses recognition."

84. Here the difference is that the wife had been away from Pakistan for 25 years when the divorce took place. She is likely to be domiciled here. However she was born, brought up, and married in Pakistan to someone of the same background. They both have family there. The husband returned when their marriage came to an end. It is not an uncommon situation.
85. There are a great many people living in the UK from Pakistan and many move freely between both countries. Where there are as here close links to each country, it is important that marriages and divorces recognised by the country where they take place should be recognised in the other country unless there are good reasons for not doing so.
86. I see no good reasons here. That the wife has been away from Pakistan for a long period and is no longer domiciled there are factors. Also she was not given notice of the divorce nor the opportunity to participate. That is a feature of a talaq divorce. But neither party wishes the marriage to continue. The husband has expressly accepted that the wife has a valid financial claim under Part III of the Matrimonial and Family Proceedings Act 1984.
87. In the exercise of my discretion, I do not consider the matters to which I have referred should deter me from exercising my discretion to recognise the divorce obtained by the husband in Pakistan in 1987 which was valid from 1 April 1988. I so hold. I therefore propose to pronounce the declarations sought. I will leave Miss Hasan to prepare a draft order.