Recorder Allen KC. Recognition of Pakistani divorce.

Facts

W was a dual UK/Pakistani national living in London. H was a Pakistani national living in Pakistan. The parties married in Pakistan on 22 June 2012. W applied to commence divorce proceedings in England and Wales. H challenged the jurisdictional basis of W’s application and applied for divorce proceedings purportedly brought in Pakistan to be recognised as valid in England and Wales.

On H’s case the parties separated on 1 August 2015, and he pronounced verbal talaq to W in Pakistan on several occasions after September 2015. H claimed that on 9 November 2016 he attended his attorney’s offices and pronounced talaq formally in front of two male witnesses which led to the Deed of Divorce being notarised and W being paid the mehar H was obliged to pay in accordance with the parties’ Nikkah. H then said that he arranged for a member of his staff to deliver a copy of the Divorce Deed and various other documents to the local Cantonment Board as required under the Muslim Family Law Ordinance 1961 s 7 (MFLO 1961) on 16 November 2016. In accordance with the MFLO 1961 it was H’s case that the divorce automatically became effective on 15 February 2017, 90 days after the Divorce Deed was delivered to the Chairman of the local Cantonment board.

W argued the divorce proceedings in Pakistan were invalid and should not be recognised as she was not aware of the divorce until January 2023. W claimed she did not receive three notices to attend the local Cantonment Board to consider reconciliation and that she had not attended the local Cantonment Board’s offices on 11 August 2020 to sign a copy of the Confirmation Certificate of Divorce. W accepted she had received photographs sent by H via WhatsApp of the Confirmation Certificate of Divorce on 1 and 2 August 2021, but claimed she did not think these documents were valid as a few days later H had said to W that the Certificate was ‘bullshit’. W claimed the first time she was made aware that the parties were no longer married was through possession proceedings commenced by H against her in London in January 2023. W also claimed that the English court should refuse to recognise the divorce on public policy grounds under s 51(3)(c) FLA 1986 on the basis that H’s status as a wealthy and ‘politically connected’ man meant that he had been able to generate false divorce paperwork in Pakistan.

W’s jurisdictional grounds for her divorce application in England and Wales were (i) habitual residence for one year; (ii) domicile and habitual residence for six months; or (iii) sole domicile. H argued that although W was resident in England at the date of issue of her divorce application, she did not have the necessary intention of permanent or indefinite residence.

Held

Recognition of divorce

Recorder Allen KC concluded that the Divorce Deed of 9 November 2016 and other divorce documents were valid and authentic – [47]⁠(a)–(b) – and that there was no basis upon which to decline to recognise the divorce on public policy grounds; [73]. Whilst it was found that the divorce papers were delivered to an address that H knew W no longer lived at, it was held that W did know about the divorce; [47]⁠(c)–(d). It was held that the Pakistani divorce was valid and effective under Pakistani law as required by s 46(1)(a) FLA 1986. Additionally, it was held that the English court should recognise the Pakistani divorce as valid and effective per s 51(3)(a) FLA 1986 as W knew about the divorce proceedings in Pakistan in 2016 and was given a reasonable opportunity to participate in them; [67]. It was made clear by the court that there was no need for W to have actual notice of the divorce proceedings but ‘the need for H to have taken reasonable steps for giving notice to W of the divorce proceedings and for H to have given W reasonable opportunity to take part in the proceedings’; [66].

Jurisdiction

It was held that W had not acquired a domicile of choice nor was she habitually resident in England and Wales at the date of issue of her divorce order application; [97]. W had not established the necessary intention to permanently stay in England to have acquired a domicile of choice in England as at the date of issue of her divorce application in May 2023; [81]–[82]. It was also held that W was not habitually resident in the jurisdiction as at the date of issue of her divorce application and that ‘W’s presence in England since late 2021 is inextricably linked with her ambition to secure a financial award from H in this country’; [95].

Recorder Allen KC also provided a useful summary of the law of habitual residence since Brexit; [83]–[90]. It was held that the present position on habitual residence under English law is uncertain as there is a conflict between the current post-Brexit legislation which appeared to adopt the Marinos interpretation, and Parliament’s perceived intention to follow EU law which was now certainly the Munro interpretation; [89]. Recorder Allen KC preferred the purposive Munro interpretation because ‘(i) the Ministry of Justice indicated they intended to follow EU law for continuity and comity; and (ii) the position in the EU is now clear and the English courts may still take account of such decisions’; [90].