20th October 2016
Judgments in respect of a husband’s challenge to jurisdiction in divorce proceedings
Facts:
- The parties married in 1995. W petitioned for divorce in England & Wales in 2016. Whilst both parties had dual Pakistani and British nationality, it was agreed that they were habitually resident in England and Wales.
- The husband claimed that because they were married under Sharia Law, which was a religious contract, only Pakistan had jurisdiction to hear the divorce. If he got divorced in England, he would be committing a criminal offence under Pakistani law.
- If the English court did have jurisdiction, the husband claimed that the proper forum for determination of the divorce was Pakistan.
- The husband had been 3 weeks late in filing his acknowledgment of service indicating that he wished to challenge jurisdiction. The wife subsequently applied to the court for a decree nisi under the special procedure as the husband was out of time to defend the petition. This was put on hold until after the jurisdictional dispute.
- Francis J gave three judgments.
Held:
- (1) As it was uncontroversial that the parties were habitually resident in England and Wales, pursuant to Article 3(1) of Brussels II, the court had jurisdiction to hear the divorce proceedings.
- If the husband’s submissions succeeded, the court would be approving of racial discrimination. The wife would be denied the rights that the Matrimonial Causes Act 1973 grants to all British citizens because of her dual Pakistani nationality.
- It was also likely the court would be approving of gender discrimination. Whilst no expert evidence was before the court, it was reasonably clear that it is more onerous for women to secure a divorce in Pakistan.
- The judge could not make any findings in respect of whether granting a divorce would force the husband to commit a criminal offence as he had not provided any expert evidence to support this claim.
- (2) The proper forum for determination of the divorce was England and Wales.
- The only witnesses to the husband’s alleged unreasonable behaviour would be the parties, who both lived in England. The parties’ assets, employment and pensions were also in England, where they paid their taxes.
- Whilst the courts in Pakistan had the power to make orders for maintenance and capital, it was unclear if they had powers relating to pensions.
- (3) The husband made an informal application for relief from sanctions on the day of the hearing. He was out of time to defend W’s petition. Francis J dispensed with the need for a formal written application.
- The possible sanctions for the husband were severe; he was faced with a certificate of entitlement to a decree and grant of a decree nisi, which was a life changing status for the husband.
- Nevertheless, in considering rule 4.6 FPR 2010, Francis J found that the husband’s application was bound to fail. The certificate of entitlement to a decree was reinstated.
