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2007-12-12 - High Court of Justice, H v H, [2007] EWHC 2945 (FAM); [2008] 2 FLR 857

Family · England and Wales · Divorce · Talaq

Recognition in England of a talaq divorce pronounced in Pakistan

Key facts of the case - The couple married in Pakistan. They had spent most of their married life in England and had four children, who were all adults. After 20 years together, the couple separated and the husband returned to Pakistan. 17 years after the separation, the wife petitioned for divorce in England, giving notice of her intention to apply for ancillary relief. The husband responded that he had obtained a divorce by talaq shortly after his return to Pakistan, witnessed in the chambers of an attorney. Notice of the talaq had been sent, as required under the Muslim Family Laws Ordinance 1961 (MFLO, the domestic Pakistani legislation pertaining to divorce), to the Chairman of the Union Council of the area where the wife’s family lived.
In the meantime, the husband had married for a second time in Pakistan, and there were four children of the second marriage. The wife obtained a decree nisi (one step before the divorce was made final) in the English proceedings, but the husband petitioned for a declaration that the talaq divorce was a valid divorce, entitled to recognition by the English courts. The husband produced a divorce deed, a divorce statement certificate from the Chairman of the Union Council, and a photocopy of a page from a register of cases in the Union Council, although he could not show a copy of the notice to the union chairman. The husband claimed that he had personally delivered a copy of the divorce to the wife shortly after the notice had been posted to the union council.

Main reasoning of the court - A talaq had been announced in Pakistan that would be recognised by a Pakistani court. There was sufficient documentary reference to establish that the notice to the Chairman of the Union Council had been received, even though the notice to the wife itself had not been produced. The husband had told the wife of the divorce some time before he remarried.
A Pakistani talaq divorce that involved notice being given to the relevant Chairman of the Union Council amounted to proceedings for the purpose of s 46(1) of the Family Law Act 1986.
It was important that marriages and divorces recognised in one country should be recognised in another unless there were good reasons for not doing so, especially when there were, as in this case, close links between the two countries and many people moved freely between them. Although the wife had not been given notice of the divorce or the opportunity to take part, the talaq was the prevailing form of divorce in the country of origin of both parties. There were no good reasons to refuse to recognise the talaq divorce obtained in this case: (a) although the wife was domiciled in England, she had been born, brought up and married in Pakistan to someone of the same background, and still had family there; (b) neither party wanted the marriage to continue; and (c) the husband had expressly recognised that the wife had a valid financial claim under Part III of the Matrimonial and Family Proceedings Act 1984.

Comment - This is an example of a recent case that signals that divorces obtained by notice to the Chairman of the Union Council under the Muslim Family Law Ordinance 1961 (of Pakistan) (MFLO) are valid, even where there is no actual evidence of a notice of the talaq to the wife herself. The court appears to take the surrounding evidence to construe that her position was not negatively affected given, inter alia, that the financial claim by the wife was not being opposed by the husband. The judge significantly stated that
“There are a great many people living in the UK from Pakistan and many move freely between both countries. Where there are as here close links to each country, it is important that marriages and divorces recognised by the country where they take place should be recognised in the other country unless there are good reasons for not doing so.”
While this may be indicative of judicial realism, divorces that are pronounced without going through the procedures under the Pakistani MFLO (i.e. notice to the Chairman of the Union Council) may still not be recognised by English judges under the s 46(1) of the Family Law Act 1986 which prevents recognition of those divorces where there is no indication of ‘judicial or other proceedings’. Thus the so-called ‘bare talaq’ is still not recognised in English private international law, even though Pakistani case law indicates that such divorces are valid in Pakistan.
Although the court seems to firmly indicate that a talaq divorce such as the one involved in these proceedings would be effective as from 90 days after the notice is delivered to the Chairman of the Union Council, it is by no means clear that that is the actual legal position under Pakistani law and such a divorce may well be effective at the date of pronouncement.
In this case, there was also expert evidence to the effect that there were enough indications that the documents produced showed that the procedures under the MFLO had been complied with. This case therefore also stands as an example of where expert intervention may be required to establish that background facts had been present to indicate that procedures were complied with.