England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Birmingham Civil Justice Centre, 33 Bull Street, Birmingham B4 6DS.
		19/06/2013

MR JUSTICE HOLMAN:

1. This is an ex tempore judgment given in public after a hearing which I have conducted entirely in public.
2. The circumstances in which I am considering this case could hardly be more unsatisfactory. The context is a petition for divorce presented here in Birmingham by a wife. She herself resides in Pakistan and appears currently to be unable to visit this country. She has previously been represented by solicitors, but can no longer afford the cost of doing so. I have been told on the telephone this morning by the solicitor concerned that legal aid or public funding is not available to her.
3. The context of the case is far from straightforward, so I am left to do the best I can with only the respondent husband present, in person, before me today (assisted an interpreter), and informed by such material as is available to me from Pakistan.
4. Yesterday, 18 June 2013, Lord Neuberger of Abbotsbury, the President of the Supreme Court, gave a public lecture, which is now publicly available, headed: "Judges and Policy: A Delicate Balance". In that lecture he pointed out some of the considerable risks and consequences which may flow, and indeed are already flowing, from reductions in the availability of legal aid.
5. At paragraph 27 he said: "… It is vital for the Ministry [of Justice] to appreciate that any changes which are made to reduce legal aid and cut the cost of litigation are likely to have a knock-on effect on the cost of the courts. Less legal aid means more unrepresented litigants and worse lawyers, which will lead to longer hearings and more judge time …"
6. Generally, the material part of the lecture emphasises the risks to justice and the rule of law of an erosion of public funding for the provision of legal services where required.
7. Lord Neuberger did, however, also say at paragraph 23 of his lecture: "There is a fundamental public duty on the government, and also on the legal profession and the judiciary, to work constructively together with a view to best maintaining access to justice in the face of the harsh realities of government finances. Lawyers and judges have a duty to help make the system work, as well as warning of the risks of cuts."
8. In the present case, until recently, I would have expected to have had the assistance of experienced lawyers on each side and almost certainly expert evidence in relation to the proceedings in Pakistan which I will shortly describe. As it is, I have no legal representation and no expert evidence of any kind. I do not even have such basic materials as an orderly bundle of the relevant documents; a chronology; case summaries, and still less, any kind of skeleton argument. Instead, I have had to rummage through the admittedly slim court file, supplemented by various documents handed up to me by the respondent husband today and some material sent by the petitioner wife from Pakistan.
9. I shall do my best to reach a fair and just outcome, but I am the first to acknowledge that I am doing little more than "rough justice".
10. Against that, it should be recognised that I am fundamentally concerned with a petition for divorce brought here in Birmingham by a lady who (for whatever reason) clearly lives in Pakistan. There is an issue in this case as to the amount of English court time and English public funds which may proportionately and justifiably be expended on trying to unravel here in England what may or may not have taken place in Pakistan concerning a lady who clearly lives there.
11. The petitioner wife is called Kalsoom Tufail. I will call her "the wife". The respondent husband is called Muhammad Zubair Riaz. I will call him "the husband". It appears to be completely common ground between them that they lawfully married in Pakistan on 8 July 2010. At that time the wife was living in Pakistan. The husband was living here in the Midlands of England, but his ethnic background is clearly that of Pakistan.
12. There may be much dispute between them as to some of the detail of what happened next. The account given by the wife within the particulars of unreasonable behaviour in her later petition is that the husband sponsored her to come to the United Kingdom on a spouse visa. She actually arrived here on 6 March 2011 and shortly afterwards gave birth to their only child, Zainab Zubair, on 10 April 2011. Zainab is, accordingly, now aged just two.
13. The wife then gives an account of various respects in which she says her husband did not treat her kindly or well. She says that they both travelled to Pakistan for a family visit on 14 October 2011. That was about seven months after she first arrived here. Her petition continues: "The respondent returned to the United Kingdom on 9th November 2011, leaving the petitioner and the parties' daughter in Pakistan. The respondent also took the passports of the petitioner and the parties' daughter and these passports remain in his possession. On 18th November 2011 the respondent telephoned the petitioner and informed her that he has made his decision and does not wish to stay married to her and said: 'How do you want to take the divorce, by court or by phone?' The petitioner pleaded with the respondent to consider the parties' daughter. However, the respondent refused to listen. …"
14. On 14 May 2012 the wife issued a petition for divorce in the Birmingham County Court. That gave her address as an address in Lahore in Pakistan, and his address as an address in Tunstall in Stoke-on-Trent, England.
15. The grounds of jurisdiction pleaded and relied upon in the petition are that: "The petitioner and respondent were last habitually resident in England and Wales and the respondent still resides there." And, alternatively: "The respondent is habitually resident in England and Wales."
16. Pausing there, the husband has not contradicted or put in issue those pleaded bases of jurisdiction and it appears to me that there is indeed ample jurisdiction in this court in England and Wales to dissolve this marriage in view of those connections with this country.
17. On 23 May 2012 the husband filed an acknowledgement of service in which he said that: "Divorce proceedings in court in Lahore, Pakistan, between [these parties]. Deed dated 21.10.11. Further details to be provided when available."
18. He expressly agreed that he is habitually resident in England and Wales and said that he intended to defend the case.
19. No formal answer was filed, however, and the petition appears to have proceeded through the normal procedures for an undefended divorce.
20. After a district judge had certified that the petitioner wife was entitled to a decree, the date of 10 December 2012 was fixed as the date for the pronouncement of a decree nisi of divorce.
21. On 3 December 2012 a firm of solicitors in Stoke-on-Trent, called Park & Co., sent to the court a letter (which was copied also to Artis Legal, the solicitors then acting for the wife) which included a photocopy of a document headed "divorce certificate" and also a letter dated 30 November 2012 from an advocate of the Supreme Court of Pakistan called Nadeem-Ud-Din Malik who appears to have been acting in Pakistan on behalf of the husband.
22. The letter from Park & Co. continued: "We should be obliged if you could refer this to the judge as a matter of urgency and confirm that the case will be removed from the list for pronouncement of decree nisi on 10.12.2012."
23. There was an immediate response by Artis Legal who wrote to the court on 4 December 2012. Their letter said, in part: "We understand that the respondent has written to you enclosing the certificate of divorce he claims he obtained from the Union Council in Pakistan. The petitioner does not agree to remove this matter from the list of decree nisi to be pronounced on 10th December 2012. You will note from the divorce certificate sent by the respondent that he issued the notice of divorce on 17th July 2012 in Pakistan, some three months after the petitioner issued her petition on 15th May 2012 in England. As the petitioner issued the divorce proceedings first, then these should continue. Further, there is matrimonial property and financial matters in England that will also need to be resolved. Therefore this matter should proceed and the decree nisi is pronounced as listed on 10th December 2012."
24. Pausing there, that part of that letter from Artis Legal contains, with respect to them, some faulty reasoning. The assertion that had been made by Park & Co. was (as the husband's case remains) that these parties have already been completely and validly divorced in Pakistan. If that be right, it is irrelevant whether or not, or what steps took place in Pakistan after the date of issue of the wife's petition here. The order in which proceedings took place may of course be relevant on an application to stay one set of proceedings in favour of another. But if in fact these parties had by December 2012 already been divorced in Pakistan, then it would necessarily follow that there could not be an English decree of divorce, for it is a fundamental proposition of English matrimonial law that the court can only dissolve a valid and subsisting marriage.
25. The letter from Artis Legal also made reference to "matrimonial property and financial matters in England." Again, even if there are property and financial "matters" here, that cannot be relevant to the grant of a divorce here if in fact the marriage between the parties has and had already been fully dissolved elsewhere. It may be (I do not know) that there could be other remedies available to the wife here under Part III of the 1984 Act.
26. Those letters were clearly placed before a district judge and there was a short hearing before District Judge O'Regan here in Birmingham on 10 December 2012.
27. This morning the husband has handed to me a considerable sheaf of documents which have very recently been supplied to him by his lawyer in Pakistan. They actually arrived with him yesterday in a large brown envelope, which I have examined. Those documents happen to include at page 58 of the bundle a copy of an e-mail which the wife's solicitor here, Mr M Shabir, a partner in Artis Legal, had sent to the wife on 10 December 2012 at 6.15 p.m., describing to her the course of the hearing earlier that day before District Judge O'Regan. I think, therefore, that I should, for completeness, read out that e-mail/attendance note. It reads as follows: "I attended the court this morning. Mr Zubair [viz the husband] also attended. He produced the original divorce certificate from Pakistan and the letter from his advocate in Pakistan. (I sent these copies to you on Friday). The judge looked at it and said that as the parties have been divorced there is nothing else for her to dissolve. I made representations that Mr Zubair is habitually resident in the UK, there is matrimonial property that needs to be distributed. I said that you do not believe that the divorce documents are genuine. The judge said that she does not know whether they are genuine or not. The judge has given you until 7th January 2013 to provide evidence of the authenticity of the documents. Once you do this, then Mr Zubair will have one month to produce his evidence against your evidence. There will be a further hearing on first available date after 11th February 2013. …"
28. That, accordingly, clearly explains the context of the formal order made by District Judge O'Regan on 10 December 2012 which did indeed make provision for the sequential provision of evidence by, first, the wife, then the husband as to "the authenticity or otherwise of the document describing itself as 'divorce certificate'"; and then provided that "the matter is listed before a High Court judge for a decision as to whether or not the 'divorce certificate' has the effect of dissolving the marriage between the parties and, if so, the status of the proceedings in England and Wales case number BM12D01119 on 19 June 2013 at 10.30 a.m. The pronouncement of decree nisi is adjourned to the next hearing date."
29. The order also provided that the original of the "divorce certificate" be returned to the respondent husband, but a copy retained for the court file.
30. Today is 19 June 2013 and, accordingly, the hearing that was provided for in that order of 10 December 2012.
31. It is not at all in issue between these parties that the husband does produce and rely upon a document headed "Divorce Certificate". He has again produced to me today what purports to be the original of that document. It is upon relatively stiff parchment paper. It contains a considerable number of stamps and seals, including what purport to be seals of the "conciliation court", "The Ministry of Foreign Affairs", "The Deputy Chief of Protocol, Ministry of Foreign Affairs", and the "Consulate General of Pakistan, Manchester".
32. The document records upon it accurate identifying information in relation to each of the wife and the husband. At the top it records: "Mode of divorce: talaq". Towards the bottom it contains the following information: "Date of notice for divorce: 17.7.2012." Beneath that: "Authority granting divorce: Union Council". Beneath that: "Date of failure of conciliation: 12.11.1012." Beneath that: "Date of effectiveness of divorce: 12.11.2012." Beneath that: "Date of issuance: 17.11.2012."
33. The wife and her legal advisers have clearly seen that divorce certificate and associated documents and material, for by a letter dated 8 February 2013 Artis Legal sent to the Birmingham County Court a document headed: "Application for revision of the divorce certificate obtained by the respondent". This is a lengthy document, which appears to be addressed to "The Inspecting Officer/Assistant Director, Local Government and Rural Development, Lahore". It is headed "Petition number 106-31/01/2013". It appears therefore to have been issued in "The Office of the Assistant Director" on 31 January 2013. It is described as "Revision petition against the order dated 12.11.2012 passed by [the Administrator/Chairman of the Arbitration Council] whereby he issued the impugned certificate of divorce and for the same to be set aside being illegal, unjust, unlawful, coram non judice and a nullity in the eye of law".
34. As I understand it, this "revision petition" names the husband himself, his father, the Administrator/Chairman of the Arbitration Council, the Secretary of the Arbitration Council, and a named stamp vendor in Lahore as respondents.
35. The thrust of the lengthy document is that the "divorce certificate", although apparently valid on its face, was obtained by "illegal, unjust, improper, unlawful and coram non judice" means and that "in the interest of justice, equity and fair play" it should be set aside.
36. As I understand it from this revision petition, it is not alleged that the original "divorce certificate" upon which the husband relies and which he has produced today and which is in my hands as I speak, is itself a completely bogus and forged document. Rather, the allegation is that he obtained it through the procedure of the Conciliation Council and other necessary procedural steps by deceitful or fraudulent means. That "revision petition" appears to have been listed for hearing on 12 February 2013. However, it was not heard on that date and indeed still has not been heard.
37. I can now pass fairly rapidly over several months, for very little appears to have happened, either in Pakistan or here in England, between about early February 2013 and June 2013.
38. In June 2013 the husband's solicitors, Park & Co., informed the court that he was now acting in person and, as I have said, he appears in person before me today.
39. Further, it appears that on 7 June 2013 the wife, in Pakistan, signed a formal "Notice of change of solicitor" in the prescribed form, which has been lodged with this court, stating that she now acts in person. That formal notice of change was sent to the court here by Artis Legal with a covering letter dated 12 June 2013. That letter states: "We have been representing the petitioner in the above matter. We enclose a notice of change of solicitor confirming that we are no longer instructed in this matter. We have also posted a copy of the same to the respondent who, we understand, is also acting in person."
40. This morning, when it was clear that the wife was not personally present, I personally telephoned Artis Legal and spoke there to Mr M Shabir, who is described as a director of Artis Legal, and under whose reference initials this case was being handled. He confirmed to me that his former client is indeed currently in Pakistan. He told me that her instructions to Artis Legal had been terminated because she can no longer afford their fees. I asked him (as I mentioned, now a considerable time ago) whether she could not obtain public funding in this somewhat complex matter, and he said that legal aid is not available to her in these circumstances.
41. So it is that I have had to proceed today in the absence of the petitioning wife or any representative on her behalf. I do, however, have two faxes which she has recently sent to the court. The first is dated 14 June 2013. It makes express reference to the hearing fixed here today, 19 June 2013, and is, accordingly, proof positive that she is (and for a long time has been) well aware of this hearing today.
42. Her e-mail reads, in part: "I want to inform this honourable court that Artis Legal are no long acting for me. To date I have managed to handle this case from Pakistan via the solicitors, but at a very high cost and now I am at a stage that I cannot afford the costs any more. Although this is not a very technical case, I am confident that in person I can explain my case to the honourable court … I also want to bring in notification to this honourable court that in Pakistan due to elections 2013 all cases in Pakistani local courts were put on hold. Similarly, I had challenged the decision of the Pakistani court in Pakistan and refused to accept the divorce through the Pakistani courts. Therefore the divorce deed, which my husband Muhammad Zubair Riaz had presented in this honourable court is not true and this case is still in progress in the local court. The court at Pakistan has now postponed that case as well, because they were all heavily busy in conducting elections. Respected sirs, I am still on my stance that I do not accept this fake divorce deed issued from Pakistan. I have valid proofs which once presented in the court will be highly in my favour and will lead to the decision in my favour and will hence prove that this divorce is not a valid one and has been issued wrongly by Mr M Z Riaz. As I have already mentioned in the case paperwork that has been submitted, that my passport and my daughter's passport have been taken by Mr M Z Riaz and he is refusing to return [them] due to which I am not in a position to travel back to UK. … I would like to request the court to please give some more time so that I can get the decision from the court in Pakistan and this will definitely help in sorting the case in UK also. Once the matter in Pakistan is solved I will be in a position to present those legal documents to the Birmingham County Court also."
43. The e-mail concludes by referring to an attachment which she describes as "a letter which was issued from Pakistan's local court which will show that the case is in progress."
44. That document purports to be issued from "The office of the Assistant Director LG and CD/Inspecting Officer of Union Councils District Lahore." It is dated 5 June 2013. It refers to the wife's "revision petition" and continues: "The cited subject revision petition 2013 was under process and on 16.4.2013 next date of hearing was fixed for 24.4.2013. Now the date of hearing is fixed for 10.6.2013 … in the office of the undersigned at [an address in Lahore]."
45. Pausing there, that particular document does seem to evidence a series of adjournments or postponements of consideration of the wife's "revision petition" but also that a hearing date had by then been fixed for 10 June 2013 which of course has now passed.
46. I asked the husband, who is present here today, whether he was aware of those developments in relation to his wife's revision petition. He said that he is aware of them. He said that the hearing, which had been fixed for 10 June 2013, had been further postponed and adjourned and that he himself understands that there will be some hearing in Lahore on a day next week.
47. Yesterday, 18 June 2013, a further e-mail was received by the court here from the wife. It again makes express reference to the hearing date of 19 June 2013. The thrust of this most recent e-mail is to complain about various actions and activities of the husband in relation to the sending of alimony for the daughter. It attaches a document which, she says, describes her as his wife in February 2012, whereas "according to bogus divorce deed he divorced me at 21.10.2011. Important notice that if he has divorced me then why he declared me his wife in later transactions. Similarly he submitted many forged documents just to show that he divorced me just to avoid his legal liabilities."
48. Pausing there, although the husband does indeed claim to have pronounced talaq in or about October 2011, my understanding is that he himself only claims that that talaq fructified into a final and effective divorce in November 2012, after the necessary steps and procedures before the Union Council.
49. That, therefore, is an account of the factual background to this hearing today.
50. I return, for a moment, to the provisions of the order of District Judge O'Regan of 10 December 2012 and the purpose for which she fixed the present hearing, namely "for a decision as to whether or not the divorce certificate has the effect of dissolving the marriage between the parties …" I am not, frankly, equipped to make a final or enduring decision as to whether that "divorce certificate" or the procedure which it records "has the effect of dissolving the marriage between the parties". One reason why I am not so equipped is that I do not have any expert evidence of any kind as to the law of Pakistan or as to the status in Pakistan of that divorce certificate. I therefore wish to make absolutely clear that I do not, by my decision and ruling today, hold in any permanent or binding way that these parties have indeed definitely been finally divorced in Pakistan.
51. I am of course very conscious that by her "revision petition" the wife is challenging the legality and validity of the procedures that took place in Pakistan. I have, however, scrutinised as carefully as I can the original "divorce certificate" document that the husband produces and relies upon. It has apparent (I stress the word "apparent") authenticity. It is not a mere photocopy. It is certainly impressed with a range of different seals, including one apparently affixed in Manchester, England. It appears to bear a number of signatures authenticating it.
52. As I have said, the thrust of the wife's revision petition is not that the document itself is a forgery as such, but, rather, that it was obtained as a result of a procedure which was itself tainted by significant illegality. Patently, those are questions which are only realistically capable of being resolved in Pakistan where all the relevant events took place and where there are people knowledgeable and informed about the relevant Pakistan law.
53. However, on the basis of the material currently available to this court, including, in particular, that divorce certificate, I do currently consider that it appears, on the balance of probability only, that these parties have probably already been finally divorced in Pakistan. For that reason, it is clear to me that, at any rate for the time being, no further steps can be taken upon the wife's petition for divorce here and it should be stayed. I do not finally and irrevocably dismiss that petition.
54. Accordingly, if, later, the wife does succeed in establishing by her revision petition in Pakistan, or other legal proceedings there, that the purported divorce in Pakistan is illegal and invalid, as she claims, it will be open to her to apply for the stay, which I impose today, to be removed and to proceed upon her English petition.
55. My order, therefore, does not ultimately prejudice her since it stays, rather than dismisses, her petition. Nor, indeed, does it prejudice the husband, for the order has the effect that for so long as he is able to sustain the validity of the divorce upon which he relies there can be no divorce here in England.
56. It is for those reasons that I now make an order in terms which I have already drafted and which have been translated to the husband. In the peculiar circumstances of this case, in which the wife is not present, it is, I think, appropriate that I should read the whole of that order, formally, into this judgment. It will provide as follows: "Upon hearing the respondent husband, Muhammad Zubair Riaz, in person and upon the petitioner wife, Kalsoom Tufail, being neither present nor represented, but the court reading, amongst other material, e-mails to the court from the petitioner wife dated 14 June 2013 and 18 June 2013 and upon the court being satisfied from those e-mails and other material that the petitioner wife is well aware that the present hearing was fixed for today's date in this court; and upon the issue identified in paragraph 3 of the order made by District Judge O'Regan on 10 December 2012, it is ordered and recorded that:

i Upon the material currently available to this court it appears, on the balance of probability only, that the parties have probably already been finally divorced in Pakistan on and with effect from 12 November 2012, as evidenced by the 'divorce certificate' issued in Pakistan on 17 November 2012 of which the respondent/husband has produced what purports to be the original sealed and stamped document for inspection by this court today.

ii Accordingly, the petition for divorce issued in this court on 14 May 2012 in proceedings number BM12D01119 is stayed indefinitely, and until further order of a High Court judge no steps may be taken in reliance upon the said petition unless and until the said stay is removed by a High Court judge.

iii In the event that the petitioner/wife obtains an order in any proceedings in Pakistan which rescinds, discharges, sets aside or nullifies the existing said divorce certificate in Pakistan, she may apply to this court for a High Court judge to remove the said stay.

iv For the avoidance of doubt, nothing in this order is, or shall be treated as, a declaration as to the validity of the said divorce certificate or of the said divorce nor as to its formal recognition by this court.

v An official transcript shall be made at the expense of public funds of the judgment given today. Copies shall be sent to both parties (in the case of the petitioner/wife, by an attachment to an e-mail to [the e-mail address of her said e-mails to this court]), and for their information to Artis Legal, the former solicitors for the wife, and placed upon the court file."

57. I now return briefly, as I began, to paragraph 27 of that speech which Lord Neuberger gave yesterday. He said, as I have already quoted: "Less legal aid means more unrepresented litigants … which will lead to longer hearings and more judge time." I record that I began this case at 10.30 a.m. this morning and I am now concluding it around 3.30 p.m. It has, accordingly, effectively occupied the whole of the court day. By sheer good fortune, the other case which had been listed for hearing by me today was vacated yesterday for reasons connected with its readiness. If that case had not been vacated, I, and the litigants in that case, would have been faced with very considerable difficulties and a severe shortage of court time, and probably also additional expenditure to the parties in that case who, as likely as not, would have to have returned on another day.
58. So that is my decision and the reasons for it.
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