A Muslim divorce and recognition in English law

Family Law|January 20th 2014

Readers of this blog sometimes write to ask me: “Is it possible to be legally divorced simply by undergoing a ‘bare or triple talaq?’. The talaq is the traditional Muslim divorce process and the ‘triple talaq’ is one form, in which the husband simply states ‘I divorce you’ three times. If done in in this country, it wouldn’t be enough for a legally valid divorce. The English courts do not recognise a unilateral divorce by a husband of his wife.

In some countries which apply pure Sharia law however, pronouncing a triple talaq is all that needs to be done. It is sufficient to legally divorce a wife and there is no need for any court formalities. A talaq does not operate the other way round by the way –  a wife cant divorce her husband so easily.

What does an English court conclude when asked to recognise a simple divorce which has been pronounced overseas by a husband without any court proceedings? Would it be recognised in this country as a legally valid divorce?

The answer is …perhaps. English family law does recognise a divorce granted without proceedings in some defined circumstances.

The relevant law here is set out in Section 46 of the Family Law Act 1986, paragraph two:

(2)The validity of an overseas divorce, annulment or legal separation obtained otherwise than 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;

(b)at the relevant date—

(i)each party to the marriage was domiciled in that country; or

(ii)either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce, annulment or legal separation is recognised as valid; and

(c)neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date.

(3)In this section “the relevant date” means—

(b)in the case of an overseas divorce, annulment or legal separation obtained otherwise than by means of proceedings, the date on which it was obtained.

(5)For the purpose of this section, a party to a marriage shall be treated as domiciled in a country if he was domiciled in that country either according to the law of that country in family matters or according to the law of the part of the United Kingdom in which the question of recognition arises.”

Therefore, if either party in a talaq divorce is habitually resident in this country for 12 months beforehand, the talaq will not be recognised by the courts. But if not, and the above criteria are satisfied, then it will.

In the recently published case of MET v  HAT we can see this legal principle in practice.

The wife, born in Egypt, appeared to be living the  high life in a fabulous Egyptian villa which she had recently purchased for £2.3 million. She was the fourth wife of the respondent, who came from a different country.  The marriage broke down in 2011 and coincidentally the wife came to England, setting up home here on 22 April 2011. She sought to bring divorce proceedings in this country, and also made a financial application against the husband. But he argued that he had already divorced her in his own country, by pronouncing a triple talaq, on 29 March 2012 ie within 12 months of her being able to establish habitual residence in accordance with the law.

The judge was being asked to consider the wife’s claim for spousal maintenance for herself and for her child for the following two months, until the husband’s application to strike out her divorce petition could be heard.  Even by that stage the wife’s legal costs were some £207,000.  It was a costly investment and she was also seeking a contribution towards her legal costs. London does have the reputation as “divorce capital of the world” but those who try their luck here must ensure their applications are within the law or they will fail.

The cost of failure can be very high.

The wife had set out in her own evidence that the date on which she became habitually resident in England was 22 April 2011. That meant that she  had not been habitually resident in this country for the entire 12 month period required before the triple talaq was pronounced. It was clear to the judge that she had a problem.

Expert evidence to the court noted that the triple talaq would be recognised not only by in husband’s own country but within her country, Egypt too. And since she had not been resident in this country for the  full 12 months, the talaq divorce would most likely be recognised here and her petition for an English divorce would most likely fail. As a result, her ability to claim financial relief in divorce proceedings within this country would also be stymied.

The judge declined to award her any spousal maintenance in the run-up to her husband’s application. However, the wife did have a valid claim to child support, under Schedule 1 of the Children Act 1989. The judge made such an award, ordering a costs contribution of £50,000, representing the child support element of her claim, payable by the husband towards the wife’s substantial legal bill.

But worse was still to come for this wife. Where there has been a foreign divorce a wife might still be able to apply for a financial settlement under Part III of the Matrimonial and Family Proceedings Act 1984, the intention being to alleviate the hardship of a foreign divorce.

Unfortunately, under Section 12 (1)(a) of the Act, in order to make the application under Part III there must have been foreign divorce proceedings in this country. In this case there was simply a pronouncement by the husband. As the judge stated: “The significance of this is that, if this divorce is entitled to recognition here, then, it being a non-proceedings divorce, the wife has no right to apply for relief under Part III of the Matrimonial and Family Proceedings Act 1984 because that is, for reasons which are not entirely apparent to me, confined only to cases where there has been a foreign divorce which derives from proceedings.”

The wife left court with no spousal maintenance and the suggestions of a High Court judge that her case was hopeless.

There are many, many, foreign wives at the receiving end of unfairness as we might view the case from England; but if a foreign wife does want to bring proceedings in England they do need careful advice about habitual residence. In addition, to avoid a talaq divorce being recognised in this country; they need to know how to best protect themselves from being subject to a surprise divorce overseas.

Finally, they need to carefully consider beforehand that where Part III proceedings are involved, there has to has to have been a valid marriage (and such cases have foundered being unable to establish that that procedure they went through does constitute a valid marriage) and also a divorce by proceedings.

Author: Stowe Family Law

Comments(7)

  1. Andrew says:

    It may be hard on the wife but there was very little connection between this couple AS A COUPLE and England. Any claim to English jurisdiction (except as to the children) would be exorbitant.

    Imagine if there were a marriage over which English law properly claimed jurisdiction and the husband high-tailed off to some country where the law was less favourable to wives – where, for example, the law simply recognised that both parties kept what they brought in – and then within twelve months divorced the wife there and claimed to be immune from the English jurisdiction. No chance: Part III would protect the wife.

    But that, effectively, is what the wife here did in reverse, and the judge was right to see through it.

  2. Tristan says:

    Looks like the wife’s decision to settle here was purely a tactical one. That’s a consequence of English divorce laws looking so attractive to outsiders seeking advantage.

    As regards sharia law generally, that’s creeping in relentlessly though unobtrusive at present. In some areas criminal justice under sharia is now dispensed including murder cases, without the apparent knowledge of the authorities although I suspect the police are well aware and turning a blind eye as usual. It probably ticks some poseur chief constable’s Diversity box.

  3. Andrew says:

    In fact even if it had been a proceedings divorce she might not have got any help under Part III. The court has to consider the parties’ connections to England and Wales, the country of the divorce, and any other country. The connections to Egypt and to the husband’s home country overwhelmed those to E and W, especially during the marriage. This was not an English marriage.

  4. sarfraz mohammed says:

    Hi Marilyn,

    A very interesting article on Muslim divorce. Thank you.

    I take your point that: “The English courts do not recognise a unilateral divorce by a husband of his wife”, however do they recognise a Talaq (Islamic divorce) issued through an Islamic Council in the UK ? Similarly is the Jewish ‘Get’ issed by a Beth Din in the UK recognised by the English courts.

    Many thanks.

    Sarfraz

    • Marilyn Stowe says:

      Dear Sarfraz
      If a divorce takes place in this country a religious divorce will not be regarded as valid or binding in English law. There must be civil proceedings. That applies to all religious divorces.
      Regards
      Marilyn

  5. Andrew says:

    The Batei Din take care that the civil and the Jewish divorce process run together so that the document establishing that there has been a “get” is not released until the civil decree is absolute. I have to say that some (not all) of the Islamic Councils do not follow the same policy.
    .
    Unfortunately also some of the Muslim organisations allow unofficial and unrecognised religious marriage ceremonies which are without legal effect – not even as void marriages. It is of course possible for the parties to have a civil marriage – wrongly described as having their marriage registered – and it is irresponsible of anyone of influence in the Muslim communities not to see that that is always done. It is in fact easy for a mosque to be registered to conduct marriages which will be civilly and religiously binding and in due course for a member of the mosque to become an authorised celebrant.

    So far as I know all British Jewish communities run the civil and religious process in parallel. You end up with a Hebrew marriage certificate, a ketubah, and the familiar civil certificate.

  6. Noorain says:

    I was divorced in a muslim country 16 years ago. After filing matrimonial property, the Islamic version of alimony and child support and privately paying legal fees. I have received nothing. Recently the lower court struck off my divorce.
    I had used the divorce order to obtain a certificate of divorce to remarry.
    Now it would seem I have no locus standi.
    Any advise. I’m British, living in Malaysia. My family have asked me to come home.

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