Hussain v Parveen – when is a transnational divorce invalid in the UK?

As a London law firm which deals with clients from a variety of countries and backgrounds, we are used to facing questions about divorces filed outside of the UK. In today’s article we will take a look at an important case (Hussain v Parveen) in which the High Court clarified the validity and related requirements of transnational divorce.

 

Keep reading to learn more about the case and transnational divorce in general.

Background

 

The respondent, W, was born in Pakistan and has always been a Pakistani national. Many years ago, W met her first husband, A, in Pakistan, where they married in November 2000. At that time, A was still living in the UK, and he returned to the UK a few weeks after the marriage.  Meanwhile, W continued to live in Pakistan.

 

In February 2008, A filed a petition for divorce in England. In accordance with Pakistan’s 1961 “Muslim Family Laws Ordinance” law, A read Talaq (Islamic way of divorce) in England and gave it in the form of a letter. The letter was converted into a divorce certificate by a mosque in Bradford on February 10, 2008. Subsequently, the mosque sent the divorce certificate to W, who then provided it to the local trade union committee. A certificate was officially issued by the local trade union committee stating that the divorce was effective from 29 May 2008.

 

In accordance with Pakistani law, the divorce was considered valid to determine that the marriage between A and W was completely over, allowing W to remarry.

 

W remarries

 

After the end of her first marriage, W met her second husband, referred to as “H”. On December 19, 2008, they got married in Pakistan. However, unlike W’s first marriage, the second husband brought her to the UK. On March 28, 2009, W came to the UK with H, and has been living in the UK since then. However, W’s second marriage did not go particularly well either, and the marriage broke down.

 

W’s second husband, H, filed divorce proceedings on April 25, 2018 and received a provisional divorce judgment (decree nisi) in September 2019. Around August 2020, H suddenly applied to revoke the interim decree and applied for annulment of the marriage on the grounds that W was still married to her ex-husband, A, on the date of her marriage to H. Since their marriage was not dissolved in the UK, W has always been married. The application was initially rejected, but W continued to appeal, and the marriage was annulled on the grounds of bigamy.

 

The British Family Court subsequently held that the marriage between the two parties was indeed invalid. The ruling was based on the fact that W’s divorce proceedings started in the UK and ended in Pakistan. This means that the divorce is an international divorce which, while recognized as valid in Pakistan, is not entitled to recognition under the Family Law Act 1986 in the UK.

 

According to relevant laws in the UK, if the husband declares talaq divorce in the UK alone, the divorce will not be recognized. Also, if the husband declares the talaq divorce in UK and then notifies his wife and the chairman of the trade union committee in Pakistan or Bangladesh, the divorce is also not recognized. English courts have held that an overseas divorce can only be recognized in the UK if it was initiated and obtained in the same country outside the UK.

 

The judge therefore ruled that under English law W was in a bigamous relationship with her second ‘husband’, H, and that the marriage was voided under section 11(b) of the Matrimonial Causes Act 1973. W was dissatisfied with this resolution and appealed the decision.

 

What did the High Court decide?

 

The point of contention between H and his counsel was that W’s previous divorce is not entitled to recognition under section 45/46 of the Family Law 1986, as the court is obliged to use this regulation to determine whether the wife and husband are legally married on the date of marriage. The court held that under British law, the wife’s previous divorce was in fact an international divorce and had no right to be recognized in the UK. However, this is inconclusive on the question of whether the wife lacks the capacity to marry her husband. The Act does not specify the impact of non-recognition on the ability to marry.

 

The judge believed that the validity of the wife’s previous divorce should be determined by the laws of Pakistan, under which her first marriage was validly determined. From the perspective of fairness, the court also believed that each case should be viewed on its own merits. W’s first husband lived in the UK for a long time, but W did not live in the UK. Therefore, their divorce had to take place in two places. UK law encourages Muslim Pakistani nationals residing in the UK to obtain divorces in the UK through the talaq process and by post. However, this did not apply to W, who at all relevant times was domiciled and living in Pakistan.

 

The court held that, according to the Family Law Act 1986, the divorce had no right to be recognized.  However, this did not mean that W lacked the ability to marry, because in judging whether W’s marriage and divorce were valid, marriage took precedence over divorce. Therefore, the applicable law is that of the country where the marriage took place, in this case, Pakistan. According to the laws of Pakistan, W’s divorce was valid and her marriage was also valid. Because of this, the appeal was approved and W’s second marriage was declared valid.

Our thoughts

 

It is important that you know whether your foreign divorce is recognized in the UK for a number of reasons. First of all, you may want to remarry in the UK. If this is the case, then your first divorce needs to be recognized. If it is not recognised in the UK, then it is classed as bigamy and the new marriage is invalid. In addition, divorce can affect issues such as wills and inheritance, immigration, taxes, benefits, and the financial remedies you may have.

 

So how do I know if our divorce is valid?

 

Generally speaking, England and Wales recognize most overseas civil court divorces, but there are some basic criteria. Under the Family Act 1986, overseas divorces obtained judicially or otherwise will only be recognized in the UK if:

• valid under the laws of the country in which it was acquired
• On the relevant date (i.e. the date on which the proceedings commenced), either party was either a permanent resident or domicile or a national of the country.

 

The UK recognizes overseas divorces obtained by means other than litigation where:

• valid under the laws of the country in which it was acquired
• On the relevant date (i.e. the date the divorce was obtained), both parties were domiciled in that country, or one was domiciled in this country and the other was domiciled in a country which recognizes the divorce (in this case, the United Kingdom)
• Neither party was habitually resident in the UK during the year immediately preceding that date.

 

This case is different from ordinary marriages. It involves the Islamic divorce rules: talaq. According to traditional Islamic law, a husband is considered divorced when he says “I divorce you” three times in a row. This declaration immediately annuls the marriage. However, the Muslim Family Law Regulations 1961 imposed new requirements: first, the husband must notify the chairman of the district trade union council in writing to declare the talaq divorced. Second, the husband must also give a copy of this notice to his wife. Next, the divorce takes effect at the end of the 90 days (or at the end of the wife’s pregnancy if she is pregnant at this time).

 

For this special type of divorce, British law stipulates that if the husband declares talaq divorce in the UK alone, the divorce will not be recognized. Divorce will also not be recognized if husband announces talaq divorce in UK and then notifies his wife and union committee chairperson in Pakistan or Bangladesh. That said, UK courts have held that an overseas divorce can only be recognized in the UK if it was initiated and obtained in the same country outside the UK.

 

Our advice

 

To be on the safe side, you should therefore make sure your divorce proceedings begin and end in the same country. Although the lawsuit in this case was won in the end, it offers a warning for being aware of the laws around divorce before deciding to go through with it. If W had been aware of the UK’s laws around divorce, perhaps the divorce from her second husband would have been less strenuous.

 

In conclusion, obtaining recognition of a foreign divorce in the UK can be very complicated and different cases may have different outcomes. We strongly recommend anyone who is unsure to contact a legal professional in the UK to ensure their overseas divorce is valid and does not create any unintended implications.

 

If you are divorced overseas, please contact us at Lisa’s Law Solicitors immediately. Our family law lawyers can provide you with specific analysis and professional advice based on individual cases.

 

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