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Radseresht v Radseresht-Spain [2017] EWHC 2932 (Fam)

The husband sought, pursuant to ss 45 and 55 Family Law Act 1986, recognition of a divorce granted in Dubai in 2009 and, further, strike out of the petition of the wife brought in the jurisdiction of England and Wales.

Cohen J had to determine, firstly, whether the divorce should be recognised and, secondly, whether it had been 'revoked' under the applicable Islamic Law.

Should the divorce be recognised?

The court in the UAE had acknowledged a 'revocable divorce' on 24 September 2009 [28]. In submitting that this divorce should be recognised, the husband placed reliance on a Settlement Agreement and Power of Attorney signed by the wife. While Cohen J found that the wife had signed those documents, he further found that she had done so without the opportunity to take advice or study the documents, in highly emotional circumstances, and where one of the documents was in Arabic, which the wife could not read [19-21]. The financial terms contained in the agreement were signed without any disclosure [22]. The Settlement Agreement itself was 'draconian', giving the husband complete control over, among other things, the parties' children; the wife would have been very reluctant to sign it had she had the opportunity to consider it [21]. The attorney said to have been provided for the wife was paid for by the husband and had never met her [27].

s.51(3)(a) Family Law Act 1986 provides that recognition of a divorce obtained overseas by proceedings may be refused if it was obtained either:
(i) 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; or
(ii) without a party to the marriage having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as, having regard to those matters, he should reasonably have been given.

In the circumstances, Cohen J refused to recognise the divorce on both grounds [31]. While the husband argued there had been reference to a talaq in the Settlement Agreement, His Lordship considered that this did not amount to proper notice: it gave no notice of the filing of a petition, commencement of proceedings, court hearing dates or court number. Likewise, having never spoken to the attorney assigned to her, the wife had no opportunity to participate [33].

Counsel for the husband submitted that a divorce could still be recognised notwithstanding the judge's conclusions on notice and lack of opportunity, relying on Duhur-Johnson v Duhur-Johnson [2005] 2 FLR 1042 at [44], as cited in the recent decision of Lachaux v Lachaux [2017] EWHC 385 (Fam) at [30]: "The provisions [of s 51(3)] need not be exercised if the interests of the respondent spouse […] are met by other means". The wife's interests, it was said, would be met by the husband giving her permission to apply under Part III of the 1984 Act [35]. Cohen J disagreed; even if the wife did get leave under Part III, as she almost certainly would whether or not the husband agreed, it did not follow that the relief she would obtain would be the same as under the Matrimonial Causes Act 1973. Further, she would have to overcome the husband's inevitable reliance on the financial terms of the Settlement Agreement she had signed. Finally, the judge questioned whether, in any event, this passage released the court from its duty to consider the statutory requirements of s 51(3)(a) [36].

Had the divorce been revoked?

Despite having resolved the matter in favour of the wife under s51(3)(a), Cohen J found further that the revocable divorce had indeed been 'revoked'. Under Islamic law, this required the parties to have exhibited an intent to continue the matrimonial partnership within 90 days of the divorce [38]. The judge found as fact that there was such an intention, as the parties continued to live in the same manner following the divorce as they had beforehand, including sharing a bed together. The wife therefore succeeded on the issue of revocation [56]. The judge rejected as illogical the husband's contention that there had to be notice of any revocation given by the husband within the 90-day period [55].

Summary by Iain Large, barrister, St John's Chambers, Bristol.

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Case No. ZC16D00250/BV16D24425
Neutral Citation Number: [2017] EWHC 2932 (Fam)

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice

Date: Friday, 13th October 2017


Before:

MR JUSTICE COHEN

B E T W E E N :
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MEHRDAD RADSERESHT Applicant
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BARBARA RADSERESHT-SPAIN Respondent
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Transcribed by Opus 2 International Ltd.
(Incorporating Beverley F. Nunnery & Co.)
Official Court Reporters and Audio Transcribers
5 New Street Square, London EC4A 3BF
Tel:  020 7831 5627     Fax:  020 7831 7737
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MR J RAINER (instructed by Alexandra Tribe) appeared on behalf of the Applicant.
THE RESPONDENT appeared in Person.
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J U D G M E N T
 
MR JUSTICE COHEN:

1. I have been hearing this week applications brought by the petitioner/husband, as he is described, for declarations, as set out at A1 of my bundle, namely, that the divorce granted on 24th September 2009 in Dubai is entitled to recognition in England and Wales under s.45 of the Family Law Act 1986, and for a declaration of status under s.55 of the Act, and going with that his application to strike out the prayer in the petition brought by the respondent in this jurisdiction.  

2. The parties are Mehrdad Radseresht, who I will henceforth call 'the husband', and Barbara Fatemah Spain, who I shall call 'the wife'.  I mean no disrespect by referring to them in that impersonal manner, but it is a convenient shorthand. 

3. As it happened, this case came before me in February 2017 when I was sitting as a recorder in the Central Family Court, and I made orders in respect of the preparation of the trial and financial orders.  At that time the parties had the luxury of being represented by well-known specialist family Queen's Counsel.  The parties have now run out of money.  I mean no disrespect to Mr Rainer whatsoever in saying that; he has appeared on behalf of the husband with conspicuous skill.  Nor do I mean any disrespect to the wife, who represents herself. 

4. The husband was born on 15th May 1945, so he is aged 72.  He is of Iranian origin, a Muslim, and I am told he holds a number of passports.  The wife was born on 20th May 1968, so she is 49.  She is Irish.  She was born a Catholic.  She apparently converted to Islam for the purposes of the marriage but has never practised that religion.  The parties met in 1990 when the wife was about 21 and they quickly formed a relationship.  They moved to Sharjah in the UAE in 1991.  They married on 9th April 1992 in Tehran.  The wife was then 23, the husband, double her age, was 46.  She was his fourth wife.  He was her first and only husband.  They have three children, all born in different parts of the UAE, aged between 24 and nearly 17.

5. The parties met through work and after a period as employees they set up their own businesses.  They enjoyed successful business careers working together.  The wife describes herself as very much a people person and worked on the marketing side of business.  The husband was more the businessman and financier.  Together they were a successful combination.  By 2009, the year with which I am particularly concerned, their business and property interests extended to Ireland, USA, Iran and UAE, and they had a good standard of living. 

6. They were apart for quite a significant part of their time, certainly from 2007 onwards, because the wife became based in San Francisco, where the children were in school, and the husband was spending most of his working time in Iran or the UAE.  But their leisure time was spent together in any of the jurisdictions that I have mentioned.  They were to all outward appearances a happy and successful couple despite the amount of time that they spent apart because of the husband's business needs and the children's schooling. 

7. During the course of 2009 there began discussions about moving the children from America to London.  I find that the husband was particularly keen on that because it meant a ten hour flight from Dubai rather than a twenty hour flight and thus would have permitted the parties to spend more time together.  The husband says that the wife became more enthusiastic about the idea as time went on.  He puts that down to her other relationship.  But I think he is re-writing history in suggesting that the move came about, or was proposed, as a result of her, to use her word, "indiscretion". 

8. Plans began to be made for the move.  The husband says that in or about spring 2009 he began to become suspicious that the wife was having an affair, and in July 2009 he instructed a private investigator.  That his suspicions were justified was confirmed by a report from the investigator dated 10th August 2009.  At the time of its receipt the husband was in the UAE and the wife arrived there with the children very soon afterwards. 

9. In the meantime, the husband says that on 1st April 2009, during an argument that he and the wife were having when in San Francisco, he picked up the telephone and rang his office in Dubai, and in the course of the conversation with the wife, overheard by other people in his office, he pronounced a talaq.  He says that call, heard by people in the UAE, satisfied the requirement of there being witnesses to the pronouncement of a talaq.  The wife denies there was any such call or discussion.  She says, yes, that from time to time he would threaten divorce when they argued but never meant it.  Nothing turns on this difference of recollection because, as I will come back to, the evidence provided by his witnesses to the Dubai court was not accepted by the court because it was conflicting.   

10. I turn now to the crucial events of August 2009.  Armed with the report from the investigator the husband invited the wife's brother, Patrick, to come to Dubai, which he did, arriving on or about 14th August.  From the airport he was driven to a shopping mall by the husband's driver and then in that very public place the husband revealed – and I will call him "Patrick" for ease of identification of who I am talking about – revealed to Patrick the evidence that he had of the wife's adultery.  I heard Patrick give oral evidence, as well as having had the opportunity to read his written evidence, and I found him a wholly credible witness in all respects and I take what happened from his evidence. 

11. The husband told Patrick that he was very hurt but wanted to continue with the marriage and wanted the wife to own up so that the healing process, as it was described, could start.  He wanted them to remain together.  Thus, Patrick was given the unenviable task by the husband of explaining to the wife that the husband had evidence to support his suspicion.  The wife duly owned up that she had a brief relationship with another man.  The husband was, understandably, very upset.  Patrick explained to the court how the husband was at times very verbally abusive to the wife, how he pushed her around and called her by vulgar names.  Having seen subsequent e-mails that he wrote I have no doubt that that is what he did to her.  On at least one occasion Patrick saw the husband pull the wife by her hair.  Yet, says Patrick, the husband always said that he did not want a divorce or legal process.  Patrick said that on occasions he would put himself between the parties to try to intervene and calm the husband down. 

12. The husband has waived his legal privilege with his solicitors in Dubai, Al Midfa & Associates, and has produced his solicitors' file, which enables me to take up the story from there.  That file contains only e-mail correspondence, and I have not been provided with any attendance notes or other documents, or drafts of documents. 

13. On 12th August the husband went to see his lawyers to seek some general advice.  There is no record of what was said, and there were no further communications between them until 17th August.  On 17th the husband e-mailed his solicitors saying:

"Please find attached some of the points I would like to have mentioned in the agreement to be signed by my wife and myself." 

Whatever was in the attachment I have not been provided with. 

"I have asked Mr. Mohamed Hameed, another employee of the firm, to proceed to register the case on my behalf here in Dubai and I would like your assistance in advice in drafting the agreement in such a way that it is completely legally binding in Dubai and in the UK and so that there are no loopholes that my wife could use to her advantage at any time.  I would like to have full control over all aspects of the agreement, such as expenses, children living arrangements, their schooling etc., i.e. anything that she does henceforth has to be approved by me.  I would like to have this agreement signed and solidified by Thursday August 20th." 

Then he concludes:

"Could you please also recommend a lawyer outside your firm who could represent my wife here in Dubai."

14. On or about 18th August Patrick left Dubai as the parties were going to Tehran the next day for a few days.  Going to Tehran was something that they did quite frequently to deal with business affairs.  The parties had a major business in cold storage there and they had hit a significant problem with a fraud perpetrated by employees.  Patrick told me that prior to his departure there had been no talk at all of either divorce or financial settlement.  The parties were in Iran from about 19th August to about 24 August.

15. On 25th August the husband's solicitors reported to his PA that they had filed the case a previous day and that a first hearing was scheduled for 8th September.  At some stage, it is not clear when from the documents, the husband's lawyers had sent him a draft financial settlement.  On 27th August there were a number of important communications, and as this is the crucial day with which I am concerned on this aspect of the case, I will deal with it in some detail. 

16. At 11.52 a.m. a draft Power of Attorney for the wife to sign was sent by the solicitors to the husband's PA.  The Power of Attorney which they had sent was in the widest possible terms, giving the attorney the power to do virtually anything that he wished.   There is no suggestion that the attorney was anyone in whom the wife had had any choice or say in selecting.  The Power of Attorney appears in my bundle at C9.  It is a document in Arabic, a language which the wife does not read or write.  At 12.15 they sent a revised divorce agreement, by which I think they mean a financial settlement. 

17. At 1.30 p.m. the husband's PA e-mailed his solicitors to say that there were further clauses that the husband wanted to have contained within the agreement.  At 2.46 p.m. the solicitors e-mailed back to say that Mohamed Hameed agreed to add the points to the agreement.  At some stage, presumably, but there is no e-mail referring to to it, that amended agreement was provided to the husband.  The wife says that she knew absolutely nothing about any of these communications or their contents, or a financial settlement, let alone any revisions to a draft financial settlement. 

18. The Settlement Agreement is in English, unlike the Power of Attorney, and I find it a fact that both of them were signed by her.  She did not seriously challenge in evidence that they were her signature, although had previously suggested that they could be forgeries.  The husband says that the contents of the Settlement Agreement were discussed between the parties and hammered out over a ten day period between 14th and 24th August.  I do not accept that evidence.  First, Patrick, whose evidence I do accept, said that there were no such discussions between 14th and 18th when he was there.  Secondly, the husband was still re-writing the agreement as late as 27th.  Thirdly, I do not accept that the husband was between 14th and 18th expecting to divorce.  Indeed, it is the opposite of what he was saying to Patrick. 

19. What happened on the afternoon, or early evening, of 27th August is unedifying.  The wife was packing to go back to London that evening with the younger two children.  Although the documents refer to her leaving on 28th August it plainly must have been 27th, as I think the parties now agree, because by the morning of 28th they were at the Marriott Hotel Maida Vale, and there is a bill for breakfast.  Therefore, she must have left on the evening flight on 27th August.  Amidst the packing up and the welter of high emotion which existed in the household the husband presented the wife, as I find, with the Power of Attorney to sign in a language she did not comprehend and of which she was given no explanation, and a Settlement Agreement.  She was given no opportunity to take advice and, as I have already mentioned – if I deal separately with the Power of Attorney and the Settlement Agreement – she was given no explanation of the Power of Attorney.

20. Why did she sign it?  She says, "Well, I did so because I signed whatever he put in front of me", and on top of that general principle she says, which I undoubtedly accept, that she was feeling deeply guilty of her own conduct with another man.  Significantly, she was not given copies of either the Settlement Agreement or the Power of Attorney for her to go away and to study or take advice upon. 

21. As to the Settlement Agreement, that at least was in English, but she was given no opportunity to consider its terms.  I accept that if she had been given such opportunity she would have been very reluctant to sign it.  Some of its clauses are draconian.  In particular in relation to the children, they were to remain in the custody and guardianship of their father irrespective of their place of residence and schooling, which was to be determined in the sole discretion of the husband.  There were severe restrictions on the wife's conduct of her house, which included no entertainment beyond 10 p.m., certain people not under any circumstances being allowed within the premises, restricting the amount of time that she was allowed to employ a babysitter, and the instances in which she was allowed to go out to a restaurant.  It added that the children could only travel with her with the knowledge and approval of their father, and that the place of residence of the children and the place of education will be in the final decision of their father alone. 

22. So far as the financial terms are concerned, it is not possible for me to say whether they were appropriate because I have no means of judging it.  There was a schedule of liabilities that were attached but there appears to have been no specific value attributed to any of the assets.  There did not appear to have been any supporting documents in relation to any of the assets, and there was no opportunity to invite any questions.  In brief, it was an agreement which the wife was asked to sign in the absence of disclosure.  I accept her evidence that if she had understood it and had the opportunity to study it she would not have signed it.  I will revert to the Settlement Agreement later when I consider the question of notice because it makes a reference to divorce which I need to come back to. 

23. After the wife departed on the evening of 27th the Power of Attorney was returned, not to the attorney but to the husband's PA, who then sent it to his solicitors who in due course transmitted it to the attorney.  The clear inference I draw is that the attorney was chosen by or for the husband, and it is a fact that he was paid for by the husband's company. 

24. I need to say rather more about the attorney who, for these purposes, we have been calling Mr Rashed Abdullah, although some of the work was carried out at his instance rather than by him.  His conduct in these proceedings has been most unfortunate, to put it mildly.  He has completely failed to engage and has declined and failed to answer the questions that were put to him by the court pursuant to the order of Mr Justice Peter Jackson (as he then was).  That order was made in September.  Before then the wife's lawyers had been persistently trying to set up a meeting with him from late 2016.  Their file shows that he was completely evasive, either ignoring e-mails that were sent to him or deliberately saying that he was available only on dates that they had told him that they were not available on.  However, they did manage to get to see him on 11th February 2017. 

25. Before I come onto the content of that I want to say how grateful I am to Mrs Moussaoui of the wife's former solicitors, DWFM Beckman, and her colleague, Miss Johnson, for their help at very short notice.  That came about because the wife told me that she had heard a voice recording at the offices of DWFM Beckman, at the time that they were instructed by the wife, when the attorney admitted that he had never met or communicated with the wife.  The solicitors had ceased acting and exercised a lien for their fees but I felt I could not do proper justice to this aspect of the case with that piece of evidence, and it is to their credit that they provided it so speedily.  Their evidence confirms that what the wife said was true. 

26. At the meeting on 11th February Mr Abdullah said that he could not recall ever having met the wife and he could not find copies of any communications with her at all.  He could not find a file for her.  He could not find a client creation form.  He did not even have a ledger for her.  His only explanation was that he had moved offices and his computer files had been corrupted.  Mrs Moussaoui asked to see file creation files for clients during this period, but he did not have one for the wife.  He had, of course, tried to dodge the meeting by claiming that he was abroad on the day that he was met, and the solicitors only got into see him because someone else had booked an appointment for them in a different name. 

27. I am therefore left in no doubt that this attorney was someone who was selected by the husband's advisors, that the wife signed the agreement for his acting without any understanding of it, and that the attorney never communicated with her in any way at all.  The fact that at court on 8th September the attorney asked for and obtained a two week adjournment of the Dubai proceedings, to the husband's irritation, takes matters no further forward, and no explanation of what happened that day has been given to me.

28. I return to the proceedings.  On 24th September, at the adjourned hearing, the court ordered the witnesses to the alleged talaq on 1st April to appear on 22nd October.  As I said, they did appear and gave conflicting evidence.  The court adjourned to give judgment on 3rd November, at which date the court had agreed that there had been a divorce on 24th September, that being a revocable divorce.  Mr Edge, a well-known expert witness on matters in relation to the legal systems of the UAE, explained that the court did not accept that the talaq had been pronounced on 1st April or, as the husband alleged, in August 2009, but that the husband bringing his application for divorce was equivalent to a declaration of wanting a divorce and that the appearance on 24th September amounted to a single revocable talaq.  That therefore is the divorce that I am considering. 

29. I will deal with my findings and conclusions about the divorce now before I turn to the second substantial issue in this case, namely, the revocability of the divorce. 

30. The statute law on the recognition of divorces is to be found at s.51 of the Family Law Act 1986.  It provides that:

"Subject to section 52 of this Act, recognition by virtue of section 45 of this Act of the validity of an overseas divorce, annulment or legal separation may be refused if-

(a) in the case of a divorce, annulment or legal separation obtained by means of proceedings, it was obtained-

(i) 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; or

(ii) without a party to the marriage having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as, having regard to those matters, he should reasonably have been given." 

The provisions of (b) and (c) are not material in the context of this case. 

31. My conclusion is that this divorce should not be recognised on both grounds, both that of notice and ability to participate.  As to notice, the wife had no notice at all.  All she had was a Power of Attorney which she could not read or understand, a copy of which had not been provided to her. 

32. The Settlement Agreement, which is in English, and to which I have already referred, and which was signed in unsatisfactory circumstances, does make some reference to divorce but not one, in my mind, that begins to provide the necessary or any notice.  It says at para.1 on p.211 of my bundle, under the heading of "Divorce:

"On April----" (presumably intended to be on 1st April but it does not give a date) "2009 the second party divorced the first party----" (that is the husband divorced the wife) "--by saying the word taleeq in accordance with the provisions of Islamic Sharia and the first party hereby acknowledged the occurrence of the above being the divorce and that she was not in a menstruation period at the time when the word taleeq was said to her." 

That, it is argued on behalf of the husband, amounts to giving notice of divorce.               

33. I do not regard that as proper notice.  It gives no notice of the filing of a petition, or commencement of proceedings.  It does not give notice of any court hearing dates.  It does not give a court number, even though one had been allocated.  In my judgment, therefore, she was not given notice of divorce.  Nor, of course, did she have any ability to participate in the proceedings because the attorney never spoke or communicated with her in any way, he told her nothing of the proceedings, and it appears that if he engaged at all it was only with the husband's lawyers. 

34. Mr Rainer, taking the bull by the horns, says that even if I should make such findings I should recognise the divorce.  He refers me in particular to para.30 of Lachaux v Lachaux, a decision of Mr Justice Mostyn of 2nd March 2017.  At para.30, after reviewing various authorities, he refers to this passage cited from the case of Duhur-Johnson [2005] 2 FLR 1042: 

"First: The power contained in section 51(3)----" (and this is not a 51(3) case) "--as a whole provides for wide judicial discretion." 

Then the important bit which he relies on is the next sentence:

"The provisions need not be exercised if the interests of the respondent spouse (as opposed to the petitioning spouse) are met by other means." 

35. So says Mr Rainer, this case is really all about money, which is probably true, and the wife's interests would be protected by the giving of permission for her to make a Part III application under the 1984 Act.  In the course of this morning while I was preparing this judgment he has, on instructions, e-mailed me to say that the husband would grant such permission.  He says that in these circumstances I should exercise my discretion so as to recognise the divorce.

36. I reject the submission for the following reasons.  One, it does not follow that if the wife did get leave under Part III, as she almost certainly would whether or not the husband agreed, that the relief she obtained would be the same as she would obtain under a financial remedy application under the Matrimonial Causes Act.  Thus, her interests are not protected.  Secondly, even if the husband did agree to the granting of permission she would still have to fight the case against the background of the husband saying that there had been a valid divorce in 2009 and that weight should be given to the agreement that was made at that time.  Thirdly, I think that he is taking out of context that passage of the authority.  Even if the financial claims were to be identical that does not seem to me to release the court from its duty to consider the statutory criteria.  If there has not been notice, and there has not been ability to participate, as I find, the court should not abdicate its duty to say that it will not recognise the divorce.  Fourthly, I find there may be a difference in a variety of ways, which one can envisage, as to whether the wife was divorced in 2009 and 2017.      

37. I am now going to turn to the issue of revocability.  In a sense it does not matter what I decide about that in the light of what I have determined about notice and participation but I have heard detailed evidence, including expert evidence, on the issue and I think I should deal with it. 

38. As a matter of Islamic law a revocable divorce may be rescinded, or revoked, in circumstances where within three menstrual cycles, taken to be ninety days, the parties enter into a seclusion, which may mean having sexual conjugal relations or to put it more widely, exhibiting an intent to continue the matrimonial partnership.  Plainly, an act of sexual intercourse will be the most obvious example of intent, but it is not a pre-requisite.  Mr Edge told me that there has to be some form of intimacy, however that word is defined, within the ninety day period.  It could be evidenced by the sharing of a bedroom, pretending to the world, or displaying to the world, that they were still married.  All the matters which evidence the intent to continue the matrimonial partnership have to be taken into account.  It is, thus, a wide-ranging examination.  The husband says that if a decree is to be revoked on this basis it can only be properly revoked if the wife is given notice of its revocation and it is recorded within three months.  I will revert to this argument in a moment.  

39. As to the facts in relation to intent, I look primarily at the period between September and December 2009, that ninety day period.  The periods afterwards are only material if they cast light on the earlier period.  So, I turn to examine that ninety day period.   

40. The wife returned to London and was in a hotel from 28th August until about 3rd September.  From 3rd September to 3rd November she was in a rented apartment at Fraser Suites, Stanhope Gardens, and from 3rd November in a further rented apartment in Kensington Court Gardens, where she was for, I think, at least a couple of years.  Both rented apartments were two bedroomed apartments with reception areas, which had been rented through the husband in the names of both parties as the tenants.   Living there was the wife and the two children, and from time to time the husband.  According to the timeline that I have been given it appears that the parties were together in London between 12th and 24th October, in San Francisco seeing the eldest child between 24th October and 5th November, back in London between 5th and 14th November, and together for at least some of the time between 26th November and 6th December, when the parties were recorded as being in London but also for a few days in Rome.  During the periods that I have described the wife said there may have been some limited occasions when she was not there for one reason or another.  But, broadly speaking, during those periods she says, and it does not seem to have been significantly challenged, that they were together under the same roof.     

41. The wife says that she felt humiliated by her own misconduct and the husband's upset about it and that she did everything she could to be a compliant wife during this period, that his anger soon reduced, and they quickly resumed a full marital relationship in this period.  The husband says, no, it was not until 2015 that they resumed marital relations, and that during this three month period in 2009 he slept separately from the wife, either in the bedroom when she was away or on a couch in the living room when she was there. 

42. He was supported in that evidence by the cleaning lady, Paulina Krasziwska.  Her evidence was that from when she started work for the family, which was at some stage probably in the second half of October, when the husband was there she made up a separate bed for him.  She worked for an hour a day at the Fraser apartments, sometimes doing an extra hour at 5.30 p.m., when her worked stopped, and in the second flat between 6.00 p.m. and 9.00 p.m.  Her oral evidence was not as clear or as definite as her written statement was.  In particular, she withdrew from her written statement that when the wife was there and the husband was not the wife would sleep in in the mornings, five days a week, and that Paulina would get the children up, give them breakfast, and get them off to school.  That evidence seemed to me to be fairly implausible, and indeed she accepted that it was incorrect and that it was the wife who got the children to school, Paulina's job being to help get the breakfast ready.  I do not think that this was a deliberate lie, as the wife argues.  I suspect it may be some over enthusiastic drafting of a witness statement for a witness whose English is fractured and heavily accented and not always very easy to understand.

43. The wife takes plain issue with the account of the sleeping arrangements.  This is a difficult issue for me to resolve.  I suspect there were occasions when they slept apart, either out of the husband's inclination or because of his apnoea and snoring.  I think it unlikely that they spent every night apart.   

44. In considering this I must also take into account various other matters in relation to the way they conducted their lives.  They certainly did not broadcast the fact that they had been divorced.  Indeed, the husband says that they – in particular it must mean he as the wife says there never was a divorce that she was aware of – did not tell the children and they did not tell their friends.  To the outside world they appeared as a couple as they were before.  Hotel bookings continued to be made by the husband's PA describing them as husband and wife.  Financial transactions continued as they had been before.  Loans were taken out on an American property in 2012, and again later, in joint names as husband and wife.  They even had a meeting, I think in 2010, although I was given no precise date of it, with the Vice-President of Iran in which the husband presented the wife as his wife.  The wife did everything she could to help the husband try to sort out the difficult financial situation that had arisen with the Iranian cold storage business.  All of this is inconsistent with what the husband says was their new divorced status. 

45. The husband even told me that in 2010 he transferred 70% of their main asset, the Tehran cold storage business, into her name, albeit as trustee for the children.  She denies that these assets ever belonged to the children.  But why would he do that, I ask, if this was a wife whose claims had already been dealt with in a financial settlement?  I should say that a document subsequently prepared from the husband's office says that the transfer of shares took place in March 2014.  Whether it is 2010 or 2014 does not seem to me to make a material difference.   

46. Apart from the fact that they spent some nights apart when they were under the same roof it seems to me that everything else points to there being no change in their status or way of living.

47. But, equally, how do I tie that in with certain other contraindications?  First, and most obviously, if all this happened why did the husband get a divorce?  Why did he have the wife sign the financial settlement document, albeit, it needs to be said, that it was in significant part never implemented.  Thirdly, why did he obtain a different sort of separation agreement, which I have not yet referred to, which appears at p.292-3 of the bundle? 

48. This is an undated document, the original of which is in Persian.  It is a remarkable document.  It is a document which gives the wife no rights to anything whatsoever.  Custodianship of the children is given to their father.  She has no claim in respect of dowry or of alimony.  It gives her absolutely nothing at all.  It is not consistent with the Settlement Agreement. The husband said that it was meant to apply to Iranian assets only but there is no such restriction on its face.  It is signed by the wife but it is in Persian, which the wife can speak but cannot read.  If anything, it just seems to me to be further evidence that she signed whatever he put in front of her. 

49. But I do have to grapple with why it is that these three documents came into existence.  I think that these documents, that is the divorce, the financial settlement, and the Iranian document, were all obtained in or about August 2009 without the knowledge or understanding of the wife for the husband to keep in reserve if matters went wrong.  I think he wanted to save the marriage but he wanted to have a parachute with which to bail out if things went wrong. 

50. There is one other transaction which Mr Rainer quite rightly has drawn my attention to.  It is seen in a series of documents from 2012 when the husband transferred his share in the jointly owned Irish property to the wife, as he said he would under the Settlement Agreement, bringing with it a tax liability of about €40,000.  I cannot provide an explanation of that, but it does not sit happily with the other documents and transactions to which I have already referred.  It is an anomaly.  I give it weight and I put it into the balance. 

51. By way of completeness of my review of the evidence I should add that the parties remained on largely good terms and presented as a couple until early 2016.  At that time they had major disagreements about matters that I need not go into, save to say that part of the husband's anger was his belief that the wife had formed a relationship with another man.  The husband has written a large number of electronic messages to the wife, some of which I have read, which are of the most appalling abuse.  They certainly demonstrate a domineering and haranguing nature when roused.  For these purposes, though, what is striking about them is not only his anger that she had allegedly formed another relationship, which if divorced she would be perfectly entitled to do, but also his very frequent references in those documents to the fact that they should get a divorce.  He says that he only wrote that to emphasise that if she thought they were still married then they should get a divorce.  But it is very striking that not once in these electronic documents does he say "we are already divorced".     

52. So where does that get me?  The UAE Law of Personal Status provides at Article 109:

"(1) Revocation by a divorcer occurs verbally in writing and where impossible by sign as well as by action with intent.

(2) Revocation is to be recorded and the wife must be informed of it during her waiting period." 

53. Mr Edge explains that there are different kinds of revocation.  I refer to C38 where he says this.  The Law to which I have referred does not describe what action with intent includes and so Mr Edge refers to traditional Islamic texts:

"The traditional text referred to accept that conjugal relations and seclusion may both result in revocation.  The question then arises what is meant with intent?" 

Then he refers to Maliki text, and he continues:

"If actual conjugal relations was proved then it would be almost impossible for this action to be done without the intention to return to the marital state as sexual relations are only possible during a valid marriage; whereas if the seclusion merely comprise sharing a house and not a bed so as to provide stability for the children (as alleged was the case by the respondent in this case – that is the husband)  then this would require an active intention to be considered and seen and treated as husband and wife for it to be considered as revocation.  Sharing a bed would in my view fall on the former side of the line as to presumption that conjugal relations would occur would apply."             

54. I have found as a fact that certainly towards the latter part of the three month period there was an intention on their part, and it may be for the whole of that period, to continue or return to the marital state, evidenced principally by their life continuing virtually as it was before the events of late August and September 2009.   In the light of my findings as to notice and participation, I do not have to make any findings on whether or not there had been sexual relations or seclusion in that three month period.  I find it difficult to say when sexual relations took place but I am entirely confident that it was long before 2015, the date given by the husband.  I am further satisfied that they did share a bed for at least some of the relevant period thus satisfying the condition to prove intent and further that all the other indications show the intention to continue/return to the marital state. 

55. Thus, the final point I need to tackle are the questions of whether notice has to be given to the wife during the ninety day period and whether or not it has to be recorded for the revocation to be effective.  First, it seems to me to be utterly illogical for me to rule that the wife would have to be given notice of revocation of a divorce of which she was completely unaware.  I agree with Mr Edge that to make the recording of the revocation a mandatory pre-condition to its existence would be similarly illogical.  As he says at C39:

"In my view, logically this cannot be the case as there must be cases where the parties simply resume family and marital life without referring back to the court during the Idda.  (That is the three month period).  Furthermore, the EM (which is the explanatory memorandum to the personal status law) makes it clear that the new process was instituted to aid the wife and so was meant as an additional measure not an exclusive one, and this accords best with the provisions of the PSL and traditional law.  The requirement for its recording is evidential rather than mandatory.  Thus, if a revocation is recorded it would be unnecessary for a court to undertake the sort of exercise that I have had to undertake.  But the fact that it has not been recorded does not mean that the marriage cannot be declared to have been revoked." 

56. Therefore, having found on the issue of notice and participation in favour of the wife I find further on the issue of revocation, namely, that the continued intention to remain married during the relevant period has been shown. 

57. Just one or two loose ends to tidy up.  First, the wife at a late stage of these proceedings has sought to persuade me that the Dubai court had no jurisdiction to grant a decree in the first instance because she says neither party was habitually resident in Dubai.  Mr Edge says the test in any event is for citizenship rather than habitually resident.  But she has raised this argument very late.  There is very little evidence.  The Dubai court were satisfied that it did have jurisdiction and I should not go behind that. 

58. Secondly, I want to say this to the parties.  This case has been a financial and emotional disaster for the parties and the children.  It has been obvious throughout this hearing that the parties have found it very difficult.  I have not found that either party has the monopoly of truth or virtue.  I am sure they both care deeply for their children, who have been so affected by these proceedings, and I urge them as strongly as I can to sit down and mediate their remaining differences so that they can cease this battle and the whole of the family can benefit.