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Hussain V Parveen [2021] EWFC 73

This case concerned a question of whether a talaq obtained in Pakistan was "an overseas divorce" capable of recognition under ss. 45 and 46 of the Recognition of Divorces, Annulments and Legal Separations Act 1986 (‘the 1986 Act’).

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The petitioner husband's contention before the court was that when he married the respondent wife that the overseas divorce that she had obtained from her first husband was a transnational divorce and therefore not capable of recognition as valid in this jurisdiction under the 1986 Act. As a result, the husband said, the marriage between him and the respondent wife should be annulled.

It was accepted that the divorce that had been obtained as between the respondent wife and her first husband was valid and recognised in Pakistan. The issue that the court was required to determine was whether the 'first' divorce was recognised as valid in this jurisdiction.

In terms of the process of the 'first' divorce, the respondent's husband pronounced Talaq in England in written form, by way of a letter. The letter went to a mosque in Bradford where it was converted into a divorce certificate. The divorce certificate issued by the mosque in Bradford went to the Respondent in Pakistan. It was then provided to the local Union Council in Pakistan who declared the effectiveness of the divorce.

The court considered in reaching its conclusions two cases in particular. First, the House of Lords decision in R. v Secretary of State for the Home Department, Ex parte Ghulam Fatima [1986] A.C. 527 ("Ex parte Ghulam Fatima"). In this case the House of Lords considered a talaq pronouncement in this jurisdiction where the wife lived in Pakistan before notice was sent to the relevant authority in Pakistan. The Court held that the divorce was not entitled to recognition as it was a divorce merely concluded abroad. This case though was determined under the Recognition of Divorces and Legal Separations Act 1971 ("the 1971 Act").

The second case the court particularly relied upon in reaching its conclusion was Berkovits v Grindberg [1995] 1 FLR 477. This case was concluded under the 1986 Act. However, the case concerned a 'get' or 'gett', a Jewish divorce which was written in this jurisdiction before being pronounced in Israel (rather than a Moslem 'talaq' divorce). A key question for the court in this case was whether Ex parte Ghulam Fatima remained good law following the enactment of the 1986 Act. The court (Mr Justice Wall) held that it had not been the intention of Parliament when enacting the 1986 Act to reverse Ex parte Ghulam Fatima. Wall J concluded that if given its natural meaning, s. 46(1) of the 1986 Act should be read as referring to one set of proceedings which, for the purposes of recognition under section 46(1), must be instituted in the country in which the divorce was obtained.

Public policy arguments aside, Mrs Justice Arbuthnot found that as a matter of law the conclusions reached by Wall J in Berkovits v Grindberg in respect of 'proceedings' had been correct. As a result, the 'proceedings' of the 'first' overseas divorce were transnational having been initiated in England and concluded in Pakistan. The 'first' divorce was not capable of recognition in this jurisdiction as an 'overseas divorce' per ss. 45 and 46 of the 1986 Act as the proceedings had not all taken place in the other jurisdiction. The fact that this was a Moslem divorce rather than a Jewish divorce (as was the case in Berkovits) was not considered by the court to be of significance. In both cases, the 'proceedings' had commenced in England and had been concluded in another jurisdiction (Israel / Pakistan). Both parts of the process were necessary parts in a set of proceedings. This did not however alter the validity of the first divorce and second marriage in Pakistan.

Case summary by Rachel Cooper, Barrister, Coram Chambers

For full case, please see BAILII