Sharbatly v Shagroon: You must be married to get divorced

Lord Justice Thorpe
A summary of Sharbatly v Shagroon [2012] EWCA Civ 1507 (21 November 2012).

Sometimes you wonder how it can be that certain apparently obvious matters can be argued all the way up to the Court of Appeal. I suppose that such a thought forgets the ingenuity of litigants and, in particular, their lawyers.

The particular matter that was argued here was whether a 'wife' could proceed with an application under Part III of the Matrimonial and Family Proceedings Act 1984, despite the fact that the marriage ceremony, conducted at an hotel in London, "could never have achieved the status even of a void marriage in English law".

Let us start with the basics. Section 12(1) of the 1984 Act provides:
(a) a marriage has been dissolved or annulled, or the parties to a marriage have been legally separated, by means of judicial or other proceedings in an overseas country, and
(b) the divorce, annulment or legal separation is entitled to be recognised as valid in England and Wales,
either party to the marriage may apply to the court in the manner prescribed by rules of court for an order for financial relief under this Part of this Act."
Thus, to be eligible to apply for financial relief, the applicant must show that they were married and that they went through an overseas divorce/annulment/legal separation that is recognised as valid in this jurisdiction.

The marriage ceremony that these parties went through took place, as I have said, at an hotel in London. It was purported to be an Islamic marriage. However, at that time the 'husband' was already married. "A further obstacle to its recognition in this jurisdiction as a valid marriage", said Lord Justice Thorpe in his leading judgment, "is that no attempt was made to comply with the Marriage Act 1949 to 1986 nor was any attempt made to supplement the hotel ceremony with a civil ceremony that complied with English law."

I will not go into any detail as to the background of this case, which has dragged on for some ten years. Suffice to say that the relationship broke down in 2001 and in 2002 the 'husband' obtained a talaq divorce in Saudi Arabia. The 'wife' sought to pursue a claim under Part III and on 4th April 2012 Mr Richard Anelay QC, sitting as a High Court judge, held that her application was well-founded, after rejecting the husband's jurisdictional challenge:
"52. Mr Turner QC [formerly the 'husband's' counsel], if he had been present at the latest hearing, would have sought to submit that Cambridge Gate was not a matrimonial home at any stage during the "marriage" because such marriage was polygamous and as such was not recognised by English Law. Equally, he would have advanced that argument in support of a submission that the ['wife'] was not entitled to any relief because the talaq was not pronounced in respect of a marriage which was recognised by English Law. I prefer the submission of Mr Cusworth [counsel for the 'wife'] who, in my judgment, correctly submitted that the jurisdiction under Part III of the 1984 Act is exercised in respect of a marriage which "has been dissolved or annulled…by means of judicial or other proceedings in an overseas country and the divorce, annulment…is entitled to be recognised as valid in England and Wales" see s12 (1) of the 1984 Act.

53. I am satisfied that there [sic?] irrevocable talaq prounounced by the ['husband'] is valid under Saudi law. In line with the decision of His Honour Judge Horowitz QC in H v S [2011] EWHC B23 (Fam) which I respectfully follow, the talaq is entitled to be recognised as valid in England and Wales. In my judgment, it is the validity of the overseas divorce or annulment which is the crucial matter and not the validity of the marriage under English Law."
The 'husband' appealed. His essential jurisdictional challenge was:
"Was there ever a marriage sufficient to satisfy the provisions of s.12 of the 1984 Act?"
- i.e. that that it was incumbent upon the applicant to prove there was a marriage valid or void according to the lex loci celebrationis, as had been decided by Mr Justice Holman in Dukali v Lamrani [2012] EWHC 1748 (Fam).

Counsel for the 'wife' argued that:
"...the requirement on the applicant was to prove the divorce etc. was entitled to recognition as valid in this jurisdiction. The requirements of section 12 (1)(a) were satisfied because the marriage between the parties was valid according to Saudi law. That flows from the fact that the marriage had been dissolved according to Saudi law."
In other words, the divorce was valid, therefore the marriage must have been.

In a unanimous judgment, the Court of Appeal found in  favour of the 'husband', and allowed the appeal. Lord Justice Thorpe put it simply. He said that fundamental to the right to apply under Part III was the existence of a valid or void marriage, and that:
"It would be fanciful, and clearly contrary to policy, to suggest that a person without that foundation could acquire a right of application by virtue of the pronouncement of a talaq divorce in some other jurisdiction."
In other words, you have to be married to get divorced!