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.
“(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.