Parveen v Hussain and the Queen’s Proctor [2022] EWCA Civ 1434

Published: 04/11/2022 09:00

https://www.bailii.org/ew/cases/EWCA/Civ/2022/1434.html

Moylan, Asplin and Stuart-Smith LJJ. W was domiciled in Pakistan when her former husband pronounced talaq while in England. The talaq decree issued by a British mosque was certified by the Pakistani authorities as valid in Pakistan. W then married H in Pakistan and they moved to England. However, under English law that earlier divorce was not entitled to recognition under the Family Law Act 1986, as it was a transnational divorce (Re Fatima [1986] 1 AC 527). This in turn would mean she had not been free to marry H. Yet under private international law, formal validity (including bigamy as part of capacity to marry) is governed by the country of antenuptial domicile, here Pakistan (Brook v Brook (1861) 9 HLC 193) and under Pakistani law she had been free to marry. Which should prevail: the FLA on legal capacity to marry, or the laws on recognition of foreign divorces?

Held: Priority should be given to the law applicable to capacity to marry rather than the law applicable to the recognition of divorces. W had capacity to marry under the laws of her antenuptial domicile and this meant her marriage was valid even though the earlier divorce was not entitled to recognition under the FLA 1986. However, as suggested by Dicey at [2-047], ‘each situation should be looked at separately in order to find a solution that produces the best results in that situation’. Per Ormrod J in Messina v Smith [1983] 1 AC 145, the outcome should be 'as justice requires, in the light of all the circumstances of each case'.

In deciding what justice requires, the court should give weight, and probably significant weight, to the general policy objectives of seeking to uphold the validity of a marriage. In this case it was key that W was at all relevant times domiciled and living in Pakistan and entitled to rely on her first marriage having been determined by a divorce which was valid in Pakistan. The public policy objectives would be sufficiently achieved by denying recognition of the divorce to the wife's previous husband because of his connections with the UK.

Class Legal

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