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Abbassi v Abbassi and Another [2006] EWCA Civ 355

Wife’s appeal against referral of issue to Pakistani court to determine validity of talak divorce dismissed.

Court of Appeal: Thorpe, Smith and Hallett LJJ (7 March 2006)

Summary
Wife's appeal against referral of issue to Pakistani court to determine validity of talak divorce dismissed.

Background
The parties to this appeal married in 1988. The wife petitioned for divorce in the UK, but the decree nisi was never made absolute because the husband asserted that the marriage had been validly dissolved by talak pronounced in Pakistan in July 1999.

The husband sought a declaration, under section 55(1)(d) of the Family Law Act 1986, as to the validity of the foreign decree; the wife strenuously resisted the application, contending that there had been no such divorce in 1999 and, further, that the documentation relied on by the husband in support of his application was bogus, forged or otherwise improperly procured. Experts were appointed, who all noted irregularity and inconsistency in the documentation, but were generally of the view that the asserted talak divorce would be recognised as valid in Pakistan. The judge concluded that the validity of the talak divorce was essentially a Pakistani issue and, accordingly, he ordered that the issue should be deferred for determination by the court in Islamabad. The wife appealed on the simple ground that the judge had erred in the exercise of his discretion in following the course that he did.

The court considered the undertaking given by the husband that he would issue and serve an application to the appropriate court in Pakistan, and the concession made by the husband to the effect that he had financial responsibility for his wife, whatever the outcome of his section 55(1)(d) application. The court also summarised the judge's reasoning, which observed that the issue raised by the husband's application was not a matter of technicality, since the question of status is 'a matter of overarching importance in any society'; further, the judge had attached great importance to the huge difficulties facing a judge in London in getting to the heart of the wife's case that the husband's application was essentially fraudulent.

The wife criticised the judge: (1) for placing such emphasis on the fact that there were potentially ten witnesses to the issue of pronouncement or the validity of the documents, all of whom were in Pakistan; and (2) for having regard to the provisions of Article 6 of the European Convention on Human Rights.

Judgment
Held, dismissing the appeal, that the attack on the judge's discretion failed. The judge had an opportunity, indeed a responsibility, to adjourn the case for investigation in another jurisdiction of his own motion, and the exercise of such a discretion must necessarily have a broad ambit. There was no substance in the suggestion that the judge took account of factors that he should not have regarded, or that he disregarded relevant considerations.

The court made some general observations: it was no criticism of the judge to say that no precedent for such an order could be found in the reported authorities; in an international family law case such as this, opportunities and practices which exist for the judge of today were simply not there for the judges of earlier decades; it was equally not impressive to submit that this was some abdication of judicial responsibility which might form a dangerous precedent for the future; while each case turns on its particular facts and the demands that those facts create for the court, this was a case in which there were allegations of fraud and misconduct raised and that was an important emphasis to answer the suggestions that the judge had abdicated responsibility and that this should not stand as a model for future practice.

Finally, the court observed that, in family proceedings with an international dimension, it was becoming increasingly common to have regard to the sensible transfer by the court, acting on its own motion, an obvious example being the provisions of Article 15 of the Brussels II Revised Regulation.

Read the full text of the judgment here