Hussain v Parveen: Islamic divorce held to be invalid
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I confess that in all my years practising and writing about family law, I don't recall coming across the term 'transnational divorce'. This glaring omission from my legal education has now been remedied, by the judgment of Mrs Justice Arbuthnot, in the case Hussain v Parveen.
The case concerned nullity proceedings issued by the 'husband' (as I shall call him), on the basis that, at the time of the marriage, the wife was still married to her first husband.
The relevant facts may be stated quite shortly:
1. The wife married her first husband in Pakistan, in 2000. At that time the wife resided in Pakistan, and the first husband in the UK.
2. Shortly after the marriage the first husband returned to the UK, leaving the wife in Pakistan.
3. This situation continued until 2008, the first husband claiming that he did not have the financial resources to bring the wife to the UK. The wife's family then gave the first husband an ultimatum: either to sponsor the wife so that she could move to the UK, or divorce her.
4. The first husband chose the second option, pronouncing talaq in England. The talaq was subsequently presented to the Union Council in Pakistan, where the divorce was obtained.
5. The husband and wife then married in Pakistan, following which they both moved to this country.
6. The second marriage broke down, and the husband issued the nullity proceedings, contending that when he married the wife, she remained married to her 'first' husband, as her divorce from him was transnational in nature and could not therefore be recognised in this jurisdiction.
The husband relied on s.46 Family Law Act 1986, which sets out the grounds for recognition of an overseas divorce.
S.46 requires that at the date the divorce proceedings were commenced one of the parties must be either habitually resident or domiciled in, or a national of, the country in which the divorce was subsequently obtained. No problem then, surely? The divorce was obtained in Pakistan, where the wife was residing when the proceedings were instituted by the talaq.
Not so fast. The proceedings were commenced by the talaq in this country, and were concluded by the Union Council in Pakistan. As Arbuthnot J stated:
"The proceedings would not reach the Union Council without a talaq pronouncement. They are bound together and are the necessary parts in a set of proceedings which started in this jurisdiction and concluded in Pakistan."
The divorce proceedings were therefore transnational, and accordingly could not be recognised, as s.46 refers to one set of proceedings, not two. In other words, as stated by Wall J (as he then was) in the cited 1995 case Berkovits v Grindberg: "if given its natural meaning the section 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." To put it in simple terms, for it to be an 'overseas divorce' the entire proceedings must take place in the foreign country.
Accordingly, the divorce could not be recognised, and the second marriage was therefore a nullity.