Divorce: All in the past?

In Hussain v Parveen [2021], the court revisited the case law surrounding the requirements for a divorce to be considered an overseas divorce and therefore capable of recognition in England and Wales. The case law confirmed that the divorce in this case was a transnational divorce (a divorce which was begun in one country and concluded in another) and did not therefore meet the criteria for an overseas divorce. The public policy implications of this are that a person legally divorced in one jurisdiction can unwittingly enter into marriage that is considered bigamous in England and Wales. Hussain is a cautionary tale for those remarrying who intend to live in more than one country. This article considers the case itself and whether law reform to curb the number of ‘limping marriages’ arising from transnational divorces would be beneficial.

Facts

The wife married her first husband in Pakistan in November 2000. He then moved to the UK and claimed he could not afford to bring the wife to the UK to live with him. In February 2008 he pronounced talaq, providing a letter containing the pronouncement to the wife’s brother. A Bradford mosque converted it to a divorce certificate which was sent to the wife. She in turn registered it with the Union Council in Pakistan. The Union Council gave a date for the effectiveness of divorce as 29 May 2008. This procedure was in accordance with the Muslim Family Laws Ordinance 1961, which governs marriage and divorce in Pakistan. The divorce of the wife and her first husband was therefore recognised under Pakistani law.

The wife then married her second husband in December 2008 and moved to the UK to live with him in March 2009. That marriage subsequently broke down and the husband issued a nullity petition arguing that the divorce initiated by the wife’s first husband was transnational and could not be recognised under English law. He contended that under English law the wife was still married to her first husband, making her marriage to himself bigamous.

Issues

HHJ Kloss ordered that there needed to be a preliminary hearing in the case to determine two issues. His hope was that this would prevent costly further hearings with expert evidence being given on Sharia law and the law of Pakistan. The questions were summarised as follows:

• on the assumption that the respondent wife’s ‘first’ divorce was valid in Pakistan, and that she was therefore free to marry the petitioner husband in Pakistan (and did so), whether the court in this jurisdiction was entitled to consider whether the ‘first’ divorce would have been recognised in the UK, for the purpose of proceedings relating to her ‘second’ divorce; and
• if the court was so entitled, on the basis that the respondent’s evidence was that the talaq was pronounced in the UK and then presented to the Union Council in Pakistan where the divorce was obtained, was this a transnational divorce incapable of recognition in this jurisdiction.

Jurisdiction

At the time of the preliminary hearing, it was agreed between all parties that the court had jurisdiction to consider whether the wife’s divorce from her first husband could be recognised within the UK. The hearing therefore focused on the second issue, i.e. whether the divorce was an overseas divorce or a transnational divorce.

Relevant legislation

Section 46(1), Family Law Act 1986 (FLA 1986) states:

(1) The validity of an overseas divorce, annulment or legal separation obtained by means of proceedings shall be recognised if—

(a) the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; and

(b) at the relevant date either party to the marriage—

(i) was habitually resident in the country in which the divorce, annulment or legal separation was obtained; or

(ii) was domiciled in that country; or

(iii) was a national of that country.

In considering how case law had interpreted this section, authorities which had been determined under the predecessor to FLA 1986, the Recognition of Divorces and Legal Separations Act 1971 (RODALSA 1971), were also considered. Section 2, RODALSA 1971 provided that overseas divorces were divorces that were:

• obtained by means of judicial or other proceedings in any country outside the British Isles; and
• were effective under the law of that country. 

Section 3, RODALSA 1971 referred to the divorce being valid if, at the date of the institution of the proceedings in the country in which the divorce was obtained, certain criteria were met, i.e. either spouse was habitually resident in that country or either spouse was a national of that country (see paras 62-63).

The specificity as to the institution of the proceedings taking place in the same country in which the divorce was obtained is the primary focus of the relevant case law and the reason why there are some divorces that are valid overseas but cannot be considered overseas divorces in England and Wales. The phrase ‘obtained by means of proceedings’ has also required interpretation.

Relevant case law

The two cases the court focused on as being of the greatest relevance were R v Secretary of State for the Home Department, Ex parte Ghulam Fatima [1986] and Berkovits v Grindberg [1995]. The first was decided based on RODALSA 1971 and the second based on the FLA 1986.

The question both cases considered was whether the facts of the divorce described fitted within the definition of an overseas divorce if the step to initiate the proceedings was taken in one country but the step that concluded the proceedings took place in a second country.

Fatima was an immigration case. Like Hussain it concerned a talaq pronounced in England against a wife living in Pakistan. The talaq was similarly sent to the appropriate Union Council in Pakistan in accordance with the 1961 Ordinance. The husband’s new fiancée was subsequently refused entry to the UK as the talaq divorce relating to the husband’s first marriage was not recognised. The House of Lords was required to determine: whether the talaq divorce was obtained by proceedings wholly in Pakistan, or by proceedings partly in England and partly in Pakistan; and if the proceedings were partly in England and partly in Pakistan, whether the divorce qualified for recognition under ss2 and 3, RODALSA 1971, or whether the proceedings must be wholly outside the British Isles to qualify.

Lord Ackner concluded that the pronouncement of the talaq was the institution of the proceedings, and this took place in the UK, not in Pakistan where the divorce was obtained. The divorce did not therefore meet the requirements of s3(1), RODALSA 1971. The court concluded that this was a clear authority and had the case of Hussain been determined under RODALSA 1971, the marriage would not have constituted an overseas divorce.

Berkovits concerned a get written in England, with the procedure of obtaining the divorce (in Israel) being completed when the get was delivered to the wife in Israel. Under RODALSA 1971, the decision in Fatima would appear to provide a clear precedent, but Berkovits post-dated FLA 1986, in which the date at which proceedings were instituted in the country in which the divorce was obtained does not feature. Wall J (as he then was) therefore needed to decide whether there had been a deliberate intention on Parliament’s part to change the position from that in RODALSA 1971. He concluded it had not intended to change the position and that FLA 1986 should be read as referring to one set of proceedings which, for the purposes of recognition under s46(1), FLA 1986, must be instituted in the country in which the divorce was obtained. He pointed out (at p490) that the habitual residence/domicile/nationality requirements provided for in both Acts hung on the approach that:

… it is entirely consistent with the concept of proceedings that [the proceedings] should be geographically connected not only to the place where the divorce is obtained, but to the place in which they are instituted. If there is only one set of proceedings, then the ‘habitual residence’ requirement must be linked geographically not only to the country in which the proceedings are commenced, but also the country in which the divorce is obtained.

He also considered the phrase ‘obtained by means of proceedings’, saying (at p491):

In my view the word ‘obtained’ connotes a process rather than a single act. To obtain a divorce a party must go through a process, in the same way that a person obtains a university degree or any other qualification. If that process is part of a judicial process (proceedings) and therefore linked to one judicial authority, it seems to me that there is logic and sense in saying that the proceedings must begin and end in the same place. Accordingly, the mere fact that the divorce is ‘obtained’ in the sense of ‘finalised’ or ‘pronounced’ in one country cannot in my judgment dissociate the process of ‘obtaining’ it from the proceedings in which it was obtained.

It was therefore concluded in Hussain that the court was bound by these precedents and the divorce between the wife and her first husband could not be recognised in the English courts.

Publishing of parties’ names

An application was also brought on behalf of the wife to anonymise the judgment. It was argued that she may be punished in Pakistan and that she would be shamed, disparaged, and socially ostracized because of the finding she had committed bigamy.

The judge considered r39.2, Civil Procedure Rules 1998 and balanced the wife’s concerns against the public interest of an open debate about transnational divorces. It was concluded that failing to publish the parties’ names would stifle that debate as there was less interest in an anonymised judgment. The court did not accept that the wife would be punished in Pakistan for bigamy when she was legally divorced in that jurisdiction and although she may feel embarrassed or ashamed, this was misplaced when she had not knowingly done anything wrong. It was felt social criticism would amount to gossip and would be forgotten in time.

Practical implications and public policy

The practical implication arising from the interpretation of what constitutes an overseas divorce is the ease with which a person coming from overseas can commit bigamy in the UK without any idea that they have done so.

Bigamy is a criminal offence under s57, Offences against the Person Act 1861. It was indicated by the judge in Hussain that the wife was not to be prosecuted. It was accepted that she believed herself to be divorced. She was divorced under Pakistani law and would not have married her second husband had she known otherwise. The ramifications for the wife were not therefore as serious in this respect as they may have initially appeared.

A bigamous marriage is void under s11(b), Matrimonial Causes Act 1973 and the parties are entitled to a decree of nullity rather than a decree nisi. That a marriage is void does not prevent an application being brought for financial remedy. In Whiston v Whiston [1995], the court found that an applicant guilty of bigamy should be debarred from pursuing a claim for financial remedy and therefore profiting from their crime. When considered by the Court of Appeal in Rampal v Rampal (No 2) [2001], however, Thorpe LJ concluded the rule in Whiston could not extend to ‘exclude every culpable bigamist whatever the circumstances of the case’ and that ‘[t]he court cannot be deprived of the freedom established through a line of cases in other fields to evaluate the nature of the crime itself’ (para 30). In the context of this case therefore it seems that a decree of nullity would not necessarily have a financial benefit to the husband or a detriment to the wife.

If that is correct and all the husband had to gain was the wife’s embarrassment, shame and social ostracisation (as cited in support of her application to anonymise the judgment), then there may be merit in Parliament revisiting FLA 1986 on public policy grounds. Putting the wife in the same position as if her first husband had pronounced talaq and it had been converted into a divorce certificate by an Islamabad mosque rather than a Bradford mosque would be consistent with a general perception of fairness.

This case is a reminder to family practitioners, particularly in transnational cases, to find out whether a client has previously been married and ensure they fully understand how that previous marriage ended and the implications for the marriage about which the client is seeking advice.