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Ally Tow
Ally Tow
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Sharia divorce claim rejected: B v L [2016] EWFC 67
Date:28 FEB 2017
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Solicitor

This case before Mr Justice Francis concerned an Islamic marriage performed in Pakistan in which the husband contended that the divorce for the same could only be heard in Pakistan. The husband’s application to dismiss the wife’s petition for divorce was refused.

The husband’s application was based on three main arguments:

  1. Jurisdiction 
  2. Forum non conveniens
  3. Setting aside the petitioner’s entitlement to a certificate of decree nisi

 The husband and wife were married in 1995 and in 2016 the wife petitioned for divorce in England where both parties were habitually resident. Jurisdiction for the petition was found pursuant to Article 3(1) of the Council Regulation.

The husband, as a devout Muslim, made it clear that he did not want to get divorced and had a principled objection to divorce on religious grounds. He submitted that they were married according to sharia law and that only Pakistan had jurisdiction to hear the divorce proceedings. This was respected by the judge who mentioned the same in his judgment but reminded (quite rightly) that his job was to apply the English law and not deal with religious law or morality of certain issues. It was a worry for the judge that as a consequence of the husband’s proposition that the wife, who works and lives in England, and pays her taxes in England, and is resident in England and domiciled in England, at least for the tax purposes, should have to travel to Pakistan to secure a Divorce.

The husband failed to provide the court with any such expert evidence however, he referred to the relevant Pakistani statute which was the Muslim Family Ordinance 1961, specifically sections 5 and 7. Counsel for the husband argued that pursuant to section 7(2) of the Ordinance, divorcing the couple in England would be putting the husband in such a position that he would be committing a criminal offence under Pakistani law and would, if travelling there, be liable to be imprisoned or fined or both. The proposition was unsupported by any expert opinion.

The judge raised concerns of racial discrimination saying that if the wife had to travel to Pakistan to secure her divorce it would mean that she would be subjected to different rules of English law than people of other faiths or other nationalities living here. By allowing her to be divorced in Pakistan, the judge stated that she would be denied the rights that the Matrimonial Causes Act 1973 grants to all British Citizens, which is the right to get divorced, subject to the necessary conditions, all because of her Pakistani nationality. This, in the judge’s opinion, was tantamount to racial discrimination.

The judge was also concerned about possible gender discrimination as (although no expert evidence was provided) it was clear to him that the rights granted to men in Pakistan to secure divorces pursuant to the laws of that country are different from the rights granted to women and that it was more onerous for a woman to secure a divorce in Pakistan than it is for a man.

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Counsel for the husband directed the court to paragraph 1(2) of the Ordinance which states that this provision applies to the whole of Pakistan and to all Muslims citizens of Pakistan wherever they may be, and by so doing catching not only those citizens of Pakistan who live there but citizens of Pakistan who live elsewhere and by definition, therefore, the husband and wife in this case.

The judge correctly surmised that if that submission was correct, it meant that any Pakistani national living in England having secured a divorce pursuant to the Law of England and Wales, would have committed and would presumably still be committing a criminal offence. Aside from not making any findings in respect of that, the judge commented that the husband had not supported that submission with any expert evidence at all and furthermore went on to comment that he would be ‘surprised’ that such a submission could possibly be true.

In this case both husband and wife work and are resident in England and Wales, working in the public sector in respected professions. They are also holders of Pakistani passports and have the right to reside there. The judge noted that they were both from the medical profession with good salaries and each having pensions. He noted that the parties lived in England, earned their money in England and paid their taxes here in England. Reference was made to relevant statute in Pakistan which appeared to suggest that the courts in Pakistan have the power to make orders for maintenance and interim maintenance, and for the distribution of capital. It was, however, not clear that they had any power in relation to pension distribution. On that basis, the judge commented that for the claimant seeking such things (if there were to be one), the idea such a claimant should have to go to Pakistan to pursue that claim was ‘border line’ and an ‘outrageous proposition’.  Furthermore, in the absence of any hard evidence or expert evidence from the husband, the judge felt compelled that the appropriate forum for this divorce was England and Wales.

The third judgment referred to the late application made on the day by counsel for the husband for relief from sanctions. This was to set aside the certificate of entitlement to a decree already granted to the wife by the court on the basis that it would place the husband in hardship, namely that of divorce. It was noted that the husband was out of time to defend the petition and upon his filing of the acknowledgment of service, the wife applied for a decree nisi under the special procedure. Surprisingly, solicitors for the husband wrote to the court indicating that as they were challenging the jurisdiction, it was not their intention to file an answer to the petition.

After going through the criteria as laid down at FPR 2010, r 4.6 in respect of an application for relief from sanctions, the judge noted that the application had been made ‘at the 11th hour and 59th minute in Court today’, that there was no explanation for the failure to apply for relief within the appropriate time and the judge noted that even if permission were granted to the husband to defend the petition, it would only serve to make the proceedings more acrimonious, having the most detrimental impact upon the three children of the marriage and would only delay in the finding of any future judge that the marriage had broken down retrievably and not stop the divorce petition.

The judge held that the application was bound to fail and granted the certificate of entitlement.

It is interesting that in this day and age, with knowledge of divorce law and procedure being so accepted between practitioners that such an application was pursued by the husband. Noting that the parties were habitually resident in England and Wales, that they lived their life in England and commenting on the ‘outrageous proposition’ that if the husband’s suggestion were held to be correct, that a countless number of couples that were of Pakistani origin who had married in Pakistan and divorced in England would possibly be held as criminals in accordance with the Muslin Family Ordinance 1961 of Pakistan, the judge noted the husband’s principled attempt to stop the process but regardless the application of his as ‘really almost bound to fail’.
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