England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		18th November 2011

HHJ Horowitz QC :


 


1. The application listed before me on Friday 14^th October raised for determination whether for the purposes of English divorce and connected proceedings a Talaq pronounced by the respondent husband in Jeddah in Saudi Arabia on 26 January 2010 and placed by Deed of Confirmation before the Sharia Court on 29 January is entitled to be afforded recognition in this jurisdiction. I heard argument and was taken to documentation and authority by Leading Counsel for both parties. This is my reserved judgment.

Background History

2. The petitioner and respondent were formally married in London by civil Register Office ceremony on 16^th October 2001, following an Islamic ceremony 3 years earlier at the London Islamic Centre at the Regents Park Mosque. Both husband and wife are of Muslim faith and background. The wife, now 43, was born in Bahrain, the husband in Saudi Arabia where he is now domiciled and resident in the city of Jeddah. Both hold Saudi passports, in the wife's case no doubt as an incident of the marriage. She adds that the husband, whose mother was British, also holds a British passport. He comes, she says from a prominent and very wealthy Saudi family and she from a well known Jerusalem family.
3. There are no children of the family, the wife having two children now of age by her first marriage to a Jordanian. She was educated in England and met the respondent, who at the time owned a flat in Eaton Square, in London. Following the marriage, according to the wife, husband and wife moved between homes in Jeddah and Belgravia and latterly Mayfair.
4. The marriage entered into difficulties leading to separation in 2009. The husband is now wholly based in Jeddah while the wife continues to live in the Mayfair flat. She regards herself as habitually resident in England and Wales and her husband as domiciled in Saudi Arabia: both propositions appear correct and were not contested before me. The fact that the wife is technically an overstayer does not impede the acquisition of her habitual residence.
5. On 23^rd January 2010 in Jeddah the husband pronounced Talaq and presented a Deed of Confirmation before the local Sharia or Nikha Court 3 days later, his Talaq becoming effective under Saudi Sharia law after the 3 month interval or idda required by Islamic law and custom on 26^th April 2010. The parties dispute whether the wife was first informed, as she maintains, by receipt of a copy Deed posted to her in London in March 2010 or, as deposed on his behalf by his London solicitor, by direct communication from the husband – exactly how is not specified – in January 2010. It is not an issue I can or need to resolve. Nor is it a case in which I have been invited, in my judgment rightly, to decline recognition under s51(2) of the 1986 Act.
6. In September 2010, the wife instructed her present solicitors to file a petition for dissolution under s1(2)(b) in this jurisdiction, founded on her habitual residence, coupled with an immediate application for financial provision. Subsequently, she and her legal advisers received advice, I infer the opinion of Ian Edge, a member of the Bar and expert on Islamic law, to the effect that it was highly probable that an English Court would recognise the existing Saudi divorce as valid in this jurisdiction. Additionally, the husband instructed Charles Russell who informed Payne Hicks Beach of their intended objection to London proceedings.
7. On 10^th January 2011, at the hearing fixed for the 1^st appointment in her financial application, the petition for dissolution was withdrawn by consent with the intent on the wife's part to issue proceedings for relief following an overseas divorce under Part III s13 of the Matrimonial and Family Proceedings Act 1984.
8. An ex parte Originating Summons was issued on 23^rd March 2011. Mr Bishop appeared on the wife's behalf before Mostyn J. The proceedings have been transcribed. Mostyn J was, he said, doubtful whether the Saudi divorce was entitled to English recognition as a proceedings divorce, a pre-condition to any exercise of the Part III jurisdiction. The learned Judge is recorded as granting formal leave but adjourning over for fuller consideration.
9. Mr Bishop returned before Mostyn J on 29^th March. He was fortified at the Judge's suggestion with an urgently obtained and concise Opinion from Ian Edge. Mostyn J was not persuaded. His reasons are set out in a concise extempore judgment [2011] EWHC 884 (Fam) citing a number of authorities transcribed in the present Bundle.
10. The wife duly issued her fresh petition on 5^th April under s1(2)(b). The particulars conclude with an allegation that the husband failed to inform her of the Saudi process for four and a half months. On 14^th April her solicitors issued her Form A. On 21^st April, the husband applied to set aside Mostyn J's Order and for recognition of the Saudi divorce.
11. For reasons that I do not need to set out, that hearing did not proceed to determination and the issue has been remitted for hearing before me.
12. It is agreed between Counsel entirely appropriately in my view that I should approach the issue as a free standing application to consider whether the Saudi divorce meets the test under statute and on the authorities for recognition so as to disqualify the wife's fresh petition or fail to achieve recognition in which case a Part III application will follow. While I do not directly address the application as a set aside still less as an indirect appeal from Mostyn J, Mr Bishop QC does invite me to gain assistance from the reasoning of the learned Judge together with the other material to the extent that I find it appropriate.
13. The husband says that he is affronted as a Muslim and Saudi by the attack on the proceedings he instituted under his national and to use old fashioned terminology (mine not his) personal law founded as it is on his religion. The wife for her part says that she is hurt to have been divorced without prior consultation. Neither sensibility or sensitivity is relevant, as Mr Chamberlayne succinctly expressed it to Mostyn J, to the Court's task.
14. Similarly, the wife acknowledges through Mr Bishop that there is clear pragmatic advantage to her in acceding to the husband's application. S17 of the 1984 Act potentially imports the ancillary relief menu of Orders into a Part III application. The section further requires the Court to have particular regard to the s25 criteria of the 1973 Act. Following Agbaje [2010] UKSC 13, a less restrictive approach to a 1984 Act Application is to be adopted than was formerly applied so that the distinction between the two processes of obtaining financial redress after the end of a marriage has narrowed. Such distinction as remains might be offset by avoiding the delay in obtaining a decree in this jurisdiction and, perhaps, enhanced good will and co-operation from the husband if she does not impugn his Talaq. But, says Mr Bishop, that is not a ground for a fudged or bluntly wrong concession in law.
15. In writing this judgment, I have reviewed the careful skeleton arguments filed by Counsel supplemented by clear and helpful submissions addressed to the facts and the case law to which I was directed by Leading Counsel for both parties. Additionally, I have found the concise and authoritative treatment of the subject in Dicey Morris and Collins on Conflict of Laws 14^th Edition and 2011 Cumulative Supplement of considerable assistance in further understanding the context and development of the English recognition rules.

Recognition of non-judicial divorce in English law - Judicial or other proceedings

16. The question for determination is whether the Saudi process, which it is agreed was non-judicial, is a proceedings divorce within s46(1) of the Family Law Act 1986 defined by s54(1) as obtained by judicial or other proceedings and so entitled as of right to recognition. S46(2) which provides for recognition of a non-proceedings divorce is not in play because it is disapplied where – as here – one party has been habitually resident within the jurisdiction for the preceding year. Even if it were to apply it would not qualify the wife to apply for Part III relief under the 1984 Act, which is restricted to respondents divorced by judicial or other proceedings.

Background to recognition

17. The modern English concept of marriage and divorce as a change of status effected by the state or on its behalf is historically recent. The Church assumed control of more informal personal ceremonies in the medieval era. From that flowed control of the process of divorce or annulment by canon law and not the secular power. Post Reformation dissolution of marriage by Act of Parliament was necessarily confined to the Crown or the rich. Marriage as a civil ceremony state registered whether before a Registrar or a Church or other place of worship keeping State records is a creature of the 19^th century and judicial divorce has only been available in England since 1865.
18. Islam retains the concept of marriage as a civil contract between husband and wife rather than a spiritual union or sacrament. Divorce is an act of the parties and not of the state or a religious authority although it its forms and incidental obligations are defined by the Sharia law binding on all Muslims. In both main traditions, Sunni and Shia, and within the several schools of Sharia law, the main mode of divorce is the direct repudiation by the husband of the wife by pronouncement of Talaq by the husband which takes irrevocable effect on pronouncement ^[1].
19. Within that structure, in the modern era many Islamic states have contained the Talaq within a regulatory but without altering its essence. The Pakistan Muslim Family Ordinance 1961 (which does not apply to the socially conservative State or territory of Azad Kashmir) requires notification of Talaq already pronounced to the Chairman of the local Union Council. The process imposes a 90 day stay during which attempts can be made to effect reconciliation. Under Lebanese law, a husband who has pronounced Talaq must then inform the Sharia Court which has no adjudicatory power. As Lord Diplock observed in Quazi (below), the 1961 Ordinance is primarily procedural but effects 2 changes in the classical religious law. During the 90 day period the Talaq is deprived of immediate effect and can be revoked.
20. The complex series of rules evolved at common law over the preceding century to decide on recognition of foreign decrees of dissolution have been replaced by a simpler statutory Code that deals both with judicial divorces and forms of dissolution pronounced in countries which do not use a purely judicial process. Statutory reform gives English effect to the 1970 Hague Convention on the Recognition of Divorces and Legal Separations agreed following the 1968 Hague Conference on Private International Law. In respect of non judicial overseas divorces, the process of statutory simplification has not been straightforward and involved two successive statutes in 1971 and 1986 the latter based on but not fully adopting a 1984 Law Commission Report.
21. The 1971 and 1986 Acts both afford recognition to divorces obtained by Judicial or other proceedings a phrase imported directly from Article 1 of the 1970 Convention which provides: The present Convention shall apply to the recognition in one Contracting State of divorces and legal separations obtained in another Contracting State which follow judicial or other proceedings and which are legally effective there.
22. The core phrase judicial or other proceedings is not defined in the Convention or in the 1971 and 1986 Acts: the recommendation of the 1984 Law Commission Report to do so not followed in the latter case.
23. As Dicey observes at [18-098], the phrase has given rise to considerable difficulty further complicated by deployment of the term proceedings in s2 of the 1971 Act and the repealed s16 of the 1973 Domicile and Matrimonial Proceedings Act. Cumming-Bruce LJ said in Chaudhary (below) that the ordinary or natural meaning or meanings of the word proceedings are so general and imprecise that dictionary definitions do not assist. It may be that the root of the problem is the intrinsic difficulty of requiring judicial consideration of Islamic law concepts via the provisions of an English statute and judicial jurisdiction. Or, as Hughes J said in El-Fadl, the clear cut dichotomy between a bare Talaq and another single form of Talaq does not necessarily exist (in the jurisdiction in which it may have been obtained) so that the law of the country in question and the particular process undertaken must be examined from case to case to answer what is a question of English law.
24. The scope of other proceedings has been considered by appellate Courts in two leading cases:.
25. Quazi [1980] AC 744 was concerned with recognition of a Talaq pronounced in Pakistan in accordance with the 1961 Muslim Family Ordinance whose provisions are summarised above as well as the efficacy of a consensual Khula pronounced in Thailand 2 years before. The wife contended both processes depended for their efficacy on the acts of the parties and so were incapable of recognition under the 1971 Act. She lost before Wood J, succeeded in the Court of Appeal and lost again in the House of Lords.
26. However, the speeches did not adopt a uniform analysis. In the analysis of Lord Diplock at p809, the framework of compulsory registration backed by penal sanctions and the fact that without performance of the Regulations the Talaq did not take effect amounted to proceedings.
27. Lord Fraser left open for further consideration whether a bare Talaq was entitled to recognition. Lord Scarman rejected the wife's submission that other proceedings required to be if not judicial at least quasi judicial. Adopting a more liberal interpretation as submitted by Counsel for the husband, he advised that the Act (and the Convention from which it derived) must be construed broadly so that the proceedings test is met by any act or acts officially recognised as leading to the divorce in the country in which it was obtained and itself recognised by the law of that country as an effective divorce. It is a formulation which appears sufficient to recognise a bare Talaq. Lord Scarman's formulation derives from the submissions of Counsel for the husband contending for that precise effect for "any juristic act recognised by law which would encompass the khula and even a bare Talaq". Lord Salmon similarly construed other proceedings widely as "any proceedings other than judicial proceedings" provided they were effective, as required by the Act, under the laws of the country in which they were obtained.
28. A narrower construction was followed and applied in Chaudhary [1985] Fam 19, [1985] FLR 476, CA. The Pakistani husband pronounced bare Talaq in Sharia form before witnesses in Kashmir, although administered by Pakistan a territory to which the Muslim Family Ordinance 1961 did not apply. Wood J refused recognition declining to follow Bush J in Zaal (1983) 4 FLR 284 who granted recognition to a bare Talaq pronounced in Dubai. The husband unsuccessfully appealed. The decision remains influential and indeed binding on me and has remained for 26 years only the second appellate authority on the meaning of other proceedings. But although all three members of the Court concurred in the result and agreed that the phrase must be read to mean something more than all divorces obtained by any means which are effective in that country, the three judgments do not adopt a uniform approach in defining what that element must consist of.

i) Cumming Bruce LJ affirmed Ormrod LJ's judgment in Quazi in the Court of Appeal: the apposition of other proceedings to judicial established that a divorce was to be recognised where its legal efficacy in the country where it was obtained did not depend solely on the act of the party to the marriage. The state or some official organ recognised by the State must play a part at least to the extent that it can in proper cases prevent dissolution as of right. Further precision in principle was not possible and must yield to precise examination of the case before the Court.

ii) Oliver LJ took a more liberal view positing some degree of formality via some agency lay or religious recognized by the State as performing a function more than probative while accepting in the light of Quazi that no power of veto was necessary. What marked off the bare Talaq was the absence of the assistance or involvement of any organ of or recognised by the State even merely registering or recording what has been done (ibid p486).

iii) Balcombe LJ, at p490 accepted the even looser formulation on behalf of the wife that the minimum requirement was some form of State machinery to be involved in the divorce process, including existing religious machinery with a function to fulfil so that more was involved than the unilateral act of one party even observing a formula in the presence of witnesses.

29. The Law Commission reported in 1984, Law Com. No 137 (1984) recommending reform of the law of recognition. The recommendation of the Court of Appeal endorsed, inter alia, by Lord Scarman for a new jurisdiction to allow ancillary relief after an overseas divorce was adopted. The Commission proposed a wide definition of other proceedings at Clause 12(1) of the annexed Bill as "… acts which constitute the means by which a divorce, annulment or legal separation may be obtained in that country and are done in compliance with the procedure required by the law of that country." This non-exclusive definition as explained by the explanatory notes and para 6.11 of the Report was intended to afford recognition to a bare Talaq subject only to a discretionary exclusion where recognition would be manifestly contrary to public policy.
30. S46 of the 1986 Act does not precisely follow the scheme proposed by the Law Commission but does extend English recognition rules by dividing overseas divorces into two categories:

i) S46(1) granting recognition to a proceedings divorce effective under the law of the country in which it was obtained and of which either party was resident, domiciled or a national. The 1986 Act follows the 1971 Act in declining to define judicial or other proceedings other than to restate the Convention phrase at s54(1).

ii) S46(2) grants recognition outside the Convention to non proceedings divorces, including a bare Talaq or Ghet, provided it was (a) effective under the law of the country in which it was obtained and (b where both parties are domiciled in that country or a country recognising such a divorce and neither was habitually resident in the United Kingdom in the year preceding. That is a restrictive classification. Further, a non-proceedings divorce does not entitle an application for financial relief under s12 of the 1984 Act.

31. As Dicey observes at 18-102, s46(1) and 46(2) with s54(1) in effectively re-stating the 1971 formulation for a proceedings divorce is an implicit rejection of the expansive liberal view of Lord Scarman (and it seems to me Lord Salmon rather than Lord Fraser). It further follows, Dicey in my judgment correctly observes, that effectiveness under the law of the country where it was obtained is not a sufficient guide to recognition of a proceedings divorce or a criterion for the distinction between the two s46 categories since that filter is applied to each of them. On the premise that a distinction falls to be made between a pure Talaq and proceedings as envisaged by the precise wording of Article 1 of the Convention, s46 may be considered an elegant resolution of the problem also giving effect to Article 17 which empowers Contracting States to apply rules of law granting more favourable recognition to some overseas divorces.

The Jeddah Divorce: Law and Procedure

32. The requirements of Saudi law were initially described to Mostyn J by Mr Ian Edge, to whom I have referred above, briefly at paragraph 5 of his statement of 24^th March. I bear in mind that it was prepared in haste. In modern Jeddah the unamended Sharia applies, he advises. There is no formal requirement for Talaq to be made in Court or for the available registration procedure to be complied with. So a Saudi husband may pronounce (a bare) Talaq outside court. But practice in Saudi Arabia has evolved. It is almost unheard of for the Talaq not to be made in Court or for it not to be registered in Court. Regulations increasingly require official proof of divorce. These he briefly summarises as obtaining official forms, ID labour documents etc. So while it is in the strict sense possible to pronounce only a bare Talaq the practical consequences are so inconvenient that it is very rare to stop there.
33. Mr Edge refers to Quazi [1980] AC 744 (above) and El-Fadl [2000] 1 FLR 175 (below). Mr Edge opines in careful phraseology that seems to me deliberately to avoid certainty that the Saudi Talaq followed as here by Registration qualifies as a proceedings divorce entitled to recognition under the English statute.
34. The husband relies on two Affidavits of opinion evidence provided by Mr Sultan Al-Hejailan of the Law Firm bearing that name. The 1^st is dated 5^th January 2011 and was available to Mostyn J who refers to it. The 2^nd is dated 5^th October 2011. Neither document sets out his formal legal qualifications although I note that he is associated with Freshfields, a leading London firm of commercial and international solicitors. His firm prepared the relevant paper work for the Jeddah Court and sent confirming documentation to the wife. Mr Bishop notes that the letter of instruction has not been disclosed.
35. Affidavit 1 says in the writer's opinion his client, the husband, is divorced under Saudi law. But that is not in issue and the mere fact that the divorce is effective in the country of issue is a pre-condition but not sufficient to constitute it a proceedings divorce in the eyes of English law and within Article 1 of the Convention - see above.
36. Affidavit 1 also opines at paragraph 9 that under Saudi law the Talaq may be revoked by the husband with or without the consent of the wife (itself a minor modification of pure Sharia) if he changes his mind. Absent his revocation, after 3 months the divorce is effective automatically and recognised under Saudi law without any further action having to be taken before a Court or otherwise.
37. Affidavit 2 more expansively describes obtaining and registering a Saudi divorce as a 3 fold process:

i) Pronouncement by the husband of bare Talaq according to pure Sharia

ii) Obligatory formal endorsement [sic] from the Nikha (marriage) Sharia Court in the Form of a Deed of Confirmation. Per paragraph 3 of the 2^nd Affidavit, the husband must appear before the Sharia Judge who will verify his (ie husband's) reasons and consider any objections of the wife. Her capacity or right to make objection is not particularised whether restricted to pregnancy or otherwise. If the Judge is satisfied that the divorce was not regularly obtained he will decline to issue the Deed which will in practical terms [sic] render the divorce ineffective retrospectively.

iii) The husband must register the Deed in accordance with the Decree and subsequent Directives. Registration ensures removal of the wife's name from the marriage register and causes the family book in which by Article 1 every Saudi citizen must record their civil status to be updated. Registration of status thus enables the wife to re-marry or the husband to take a 4^th wife if he was already married to 3 other wives. A financial penalty of up to 5000 Saudi Riyals may be imposed for breach.

38. Mr Bishop submits that the 2^nd Affidavit appears to over state the position in Saudi Arabia both by reference to his own less particularised earlier document by reference to the annexes a relevant translated but redacted Royal Decree issued on 20/4/1407H (corresponding to 23^rd December 1986). He urges me to treat the husband's evidence of foreign law with caution.
39. The Royal Decree is concerned specifically with the mechanism for recording the civil status of all Saudi citizens who must ensure their personal status data updated to record status changes; Article 1. Article 46 deals with all changes of marital status. Marriage, divorce decrees and decrees of re-marriage must all be submitted for stamping within 2 months. Registration records but does not effect the change of status. Fines are imposed for failure to ensure updating of the Register.
40. A careful reading of paragraph 3 in my judgement describes a process by which the Sharia judge checks to see whether Sharia formalities have been complied with in order to ascertain whether the husband is entitled to the certifying Deed. It is only to that extent that the husband must appear so that the appearance before the Sharia Court is required not to obtain the divorce but the certificate for civil registration under Article 46. That is why he says that judicial dissatisfaction will in practical terms render the divorce ineffective even in religious terms.
41. This construction is consistent with Mr Edge's opinion. But while I have accepted Mr Bishop's submission that the 2^nd Affidavit needs to be read with caution and have so treated it, I also hold that it does extend Mr Edge's analysis. Mr Edge says that registration is overwhelmingly convenient and an un-registered bare Talaq raises such difficulties that failure to register via obtaining a Court Deed has become almost unheard of. Sultan Jehail adds and establishes by his annexed redaction of the Decree that civil registration after the event changing status is not merely convenient but compulsory under sanction of criminal penalty.
42. Is the totality of process outlined above sufficient to constitute a proceedings divorce under the English recognition rule provided by s46(1) of the 1986 Act? It is perhaps worth noting that this is the sole recognition question raised; by contrast with all the other judgments cited in this judgment there is no fall back public policy challenge.
43. S46(1) was fully considered by Hughes J (as he then was) in El Fadl v El Fadl [2000] 1 FLR 175, in a careful judgment from which both Mr Bishop and Mr Chamberlayne claim to derive support. Mr Bishop further invites me to consider the similarly careful judgment of Stephen Wildblood QC (now His Honour Judge Wildblood QC) in H v H (The Queen's Proctor Intervening) (Validity of Japanese Divorce) [2006] EWHC 2989 (Fam) [2007] 1 FLR 1318. Both judgments in their turn derive assistance from the 1985 Court of Appeal decision in Chaudhary (above).
44. El-Fadl concerned a Sharia compliant divorce between Lebanese Muslims. Under the relevant Lebanese 1962 legislation a Talaq must be pronounced before 2 witnesses, a requirement of most systems of traditional Islamic Local Authority. The 1962 Act then imposed registration before a Sharia Court. Next, follows compulsory registration of the fact of the Talaq and registration in the civil register. The system is on all fours with Saudi law save that the appearance for registration before the Sharia Court is itself mandatory within Lebanese law.
45. H v H concerned the validity of a consensual form of divorce kyogi rikon in Japanese law, the most common form of divorce in Japan the judgment notes. The consent is by written form not judicial act but the signing must be followed by formal registration before a government official in prescribed form.
46. Mr Bishop QC submits that both these recent decisions in which the divorce process was recognised as a proceedings divorces, in each case following careful examination and application of the principles in Quazi and Chaudhary, support his submission that his own client's divorce fails to be recognised as a proceedings divorce.
47. The critical differentiating factor, he submits, is that under Saudi law registration was not mandatory and the Talaq taking effect whether it was or was not registered is thus outside the bounds of a proceedings divorce.
48. Mr Bishop refers me to El-Fadl at p184 where Hughes J says "Thus what the law of the Lebanon requires on the evidence before is, first, a pronouncement of the words of the Talaq before two witnesses and, secondly, registration before the Sharia court.... accordingly, the role of the court is in this case an essential part of the process, even though it has no power of decision whether there is to be a divorce or not and is limited to recording what has previously taken place. I do not think that (one of the expert's) description of the court's function as a mere formality does justice to it."
49. Mr Bishop also refers me to H v H at [96]. Having held that the involvement of the state is not merely probative or surplusage merely proving a divorce the parties have achieved through their prior consent which of itself creates nothing, the effect, Mr Wildblood QC tersely and Mr Bishop says correctly is: no registration no divorce.
50. Mr Bishop also relies upon the judgment of Mostyn J. He refers me to the citation from Munby J as he then was in Sulaiman v Jaffali [2002] 1 FLR 479. In that case the Talaq itself had been pronounced in London by husband upon wife both Saudi domiciliaries but registered by him within 3 days in Saudi Arabia by the same mechanism as the husband in the present case. Munby J held upon the evidence before him that it took effect at the time of London pronouncement and so was obtained in London and not overseas and outside s46(1).
51. Mr Chamberlayne invites me to approach the case as he says Hughes J did in El-Fadl. That is take a broad view of proceedings to include what took place including the registration process in this particular case.
52. Sulaiman, Mr Chamberlayne submits, did not focus directly on the critical question whether the involvement of the Sharia Court was part and parcel of the divorce process and so in effect submits that the dictum on this point is obiter.
53. In my judgment the divorce obtained in Jeddah falls to be classified as a proceedings divorce. My reasons are as follows:
54. It is a common thread of the cases cited that the state/religious body involved did not pronounce the decree or have power to veto. On the balance of the authorities it is not a requisite that the proceedings function should have a veto; see per Oliver and Balcome LJJ in Chaudhary. Both Hughes J and Stephen Wildblood QC proceeded on this basis.
55. The difference between the system described in El-Fadl and the process in Jeddah is whether registration before the Sharia court is compulsory. Otherwise the systems march in step including importing the Talaq that has been pronounced into the purely civil but still important personal status data base.
56. Hughes J further accepted and applied the judgment of Balcombe LJ at 489H-490A: the acts of the parties without more cannot amount to proceedings, there must be the intervention of some other body or person with a specific function to fulfil. Hughes J applied that guidance to the essential test he formulated "whether the divorce depends for its validity at least in part on what can properly be termed proceedings." The effect of the words "in part" the editors of Dicey 14^th edition suggest at 18-102 is obscure.
57. I respectfully disagree. In every case in which the court has sought to apply other proceedings to foreign non judicial divorces the essence of the problem has been to evaluate within the English statute a form of divorce which originated with the full freedom of the parties (Japan) or one of them (Talaq) but is set within the confines of a structure that records or registers but does not pronounce the dissolution. These are the other parts of the process.
58. In the present case, the husband submitted himself to the Registration process from which came the grant of the Deed and the entitlement of both husband and wife to register their new status with profound effects on their daily life in Saudi Arabia. No other process would entitle the wife to marry again.
59. Hughes J adopting a dictum of Cumming-Bruce LJ in Chaudhary and said that the law of the country in question and the particular process undertaken must be examined in each case. I respectfully agree and follow his guidance. In the present case, by so registering the husband replicated and adopted the legal processes and effect of the actions of Mr El-Fadl. Each approached a Court that could do no more than check formalities and facilitate registration. In each case the same real consequence of change of civil status followed. In my judgment it would be artificial to say that only the Saudi husband did not engage in proceedings.
60. I find that Mr Edge's construction is persuasive. A system of unofficial unregistered divorce would produce chaotic results in a modern world of mobility abroad and bureaucracy at home. So it is entirely unsurprising that Islamic countries have sought to build a bridge between the classical law the central elements of which cannot be touched and the state's requirement to keep a public register and, also, to leave a written record of what was traditionally only verbal. In the Lebanon the registration process is directly mandatory. The Saudi system as he describes it edges by carrot rather than stick to the same result now almost universally applied. In my judgment that can properly be described to have developed into and has been applied as proceedings.
61. But it does not stop there. Mr Hejailan informs the Court that registration is compulsory under criminal penalty – as it is in the Lebanon. That adds a new dimension not put before Mostyn J. It would appear from Articles 46-50 of the Royal Decree that Talaq not confirmed by deed (or at least in writing) produces nothing to register. The combination of Talaq, Deed and fulfilment of the registration requirement is, it seems to me inescapably an intervention and act of state or official agency within proceedings with a specific function to fulfil as required by the analysis of both Hughes J and Stephen Wildblood QC. I add that insofar as Mr Wildblood QC in saying at [96] in H v H no registration no divorce was not simply a description of the kyogi rikon but an essential element of proceedings in every s46(1) case he went further than was necessary or warranted by authority.
62. Sulaiman v Juffali is not binding on me and the observations of Munby J are not central to his determination so that they can be described as obiter dictum. Further, Munby proceeded on expert evidence not that before me which cannot simply be ported into my decision.
63. Finally, stepping back from consideration of the cases I ask what is the purpose and policy of s46(1) and the International Convention to which it gives effect? The answer it seems to me is that it provides a mechanism to afford recognition to a Sharia divorce which is more than and has developed from mere oral delivery so that there can be no issue that it has been pronounced. It is also required to be effective within its own jurisdiction. If that is right, the Saudi process as now performed using the machinery adopted by the husband has produced a divorce religiously valid as certified by a religious Court and further effecting a full change of civil status in the eye of the state and the society in which it was pronounced via the registration mechanism. I find it difficult to classify that result and the process by which it was achieved it as outside the intention and boundaries of our recognition code.

Michael Horowitz QC

10^th November 2011

Note 1    The khula or consensual divorce was directly in issue in Quazi below.    [Back]