Case No: B6/2012/0974
Neutral Citation Number: [2012] EWCA Civ 1507
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MR RICHARD ANELAY QC
SITTING AS A DEPUTY JUDGE
FD01005848
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/11/2012

Before:

LORD JUSTICE THORPE
LADY JUSTICE BLACK
and
MR JUSTICE HEDLEY
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Between:

	ADNAN HASSAN SHARBATLY	Appellant	
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	MAHA MUSTAFA SHAGROON	Respondent	

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(Transcript of the Handed Down Judgment of
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James Turner QC and Deepak Nagpal (instructed by Pinsent Masons LLP) for the Appellant
Nicholas Cusworth QC and Justin Warshaw (instructed by Sears Tooth) for the Respondent

Hearing date: 18th October 2012

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Judgment
Lord Justice Thorpe : 
1.	This is the appeal from the order of Mr Richard Anelay QC sitting as a deputy High Court judge. The judgment was dated 4th April 2012. 
2.	The essential question raised by the appeal is whether the decision of Holman J in Asma Dukali v Mohamed Lamrani (Her Majesty’s Attorney General intervening) [2012] EWHC 1748 (Fam) was rightly decided. It is agreed at the Bar that if we endorse the conclusion and reasoning of Holman J the appellant is entitled to succeed. The present case is not distinguishable and so the respondent must persuade us that the Asma Dukali case was wrongly decided. 
3.	The focus of the judgment of Holman J was section 12 of the Matrimonial and Family Proceedings Act 1984 and that is equally the focus of this appeal.
4.	To give my judgment some context I offer the barest account of the history and background. 
5.	For convenience I will call the appellant “the husband”. He is a Saudi national of the Muslim faith now 66 years of age.
6.	The respondent, who I will call “the wife”, is also a Saudi national aged 47.
7.	On the 2nd July 1994 the husband, although already married, went through a ceremony at an hotel in London which purported to be an Islamic marriage to the wife. A further obstacle to its recognition in this jurisdiction as a valid marriage is that no attempt was made to comply with the Marriage Act 1949 to 1986 nor was any attempt made to supplement the hotel ceremony with a civil ceremony that complied with English law.
8.	Three children were born of the union and the parties enjoy affluence both in this jurisdiction and also in Saudi Arabia.
9.	The relationship broke down in August 2001 and consequential disputes over the children and over money crystallised in the wife’s petition for divorce (subsequently amended to a nullity petition) and the husband’s application in wardship for the return of the children to Saudi Arabia.
10.	These proceedings were listed before Kirkwood J on 13th February 2002. Both husband and wife were represented by leading and junior counsel.
11.	A hard day’s negotiation resulted in a compromise. Very briefly stated the wife was to receive outright a house in Jeddah and motor cars as well as generous periodical payments for herself and the children, partly payable in Saudi riyals and partly in sterling.
12.	By way of security for future performance it was agreed that, after the husband had obtained a talaq divorce in their homeland, the wife could issue an application under Part III of the 1984 Act which would be adjourned generally and not activated unless the husband fell into substantial breach. 
13.	This security was subsequently put in place. In March 2002 the husband pronounced the talaq, in August 2002 the wife issued an application under Part III, and in December 2002 that application was adjourned generally by agreement, that order being made by my Lord, Hedley J.
14.	Prior to that hearing there had been some rumblings which soon erupted into heated disputes about almost every aspect of the financial relationship created by the consent order of the 13th February 2002.
15.	Consequently the wife sought to  activate her Part III claim. There were various case management orders. Both parties were represented by leading counsel until the final hearing which was listed before Mr Anelay.
16.	Shortly before that hearing the husband’s solicitors came off the record. The wife’s solicitors then refused the husband’s request for an adjournment as did Mr Anelay on the 27th March 2012.
17.	A one-sided hearing developed which required only one of the four days allotted. However, Mr Anelay had before him the skeleton argument settled by Mr James Turner QC before his instructing solicitors came off the record.
18.	There were many issues put before Mr Anelay for his decision, not the least of which was whether the order of 13th February 2002 had  expressly or impliedly granted the wife leave to bring the Part III application, as section 13 of the 1984 Act requires.
19.	However, Mr Turner’s skeleton took a more fundamental point. The submission is clearly recorded by Mr Anelay at para 52 of his judgment and rejected in the following paragraph. I cite the essential passage:-
“52. Mr Turner QC, if he had been present at the latest hearing, would have sought to submit that Cambridge Gate was not a matrimonial home at any stage during the “marriage” because such marriage was polygamous and as such was not recognised by English Law. Equally, he would have advanced that argument in support of a submission that the mother was not entitled to any relief because the talaq was not pronounced in respect of a marriage which was recognised by English Law. I prefer the submission of Mr Cusworth who, in my judgment, correctly submitted that the jurisdiction under Part III of the 1984 Act is exercised in respect of a marriage which “has been dissolved or annulled…by means of judicial or other proceedings in an overseas country and the divorce, annulment…is entitled to be recognised as valid in England and Wales” see s12 (1) of the 1984 Act.
53. I am satisfied that there irrevocable talaq prounounced by the Father is valid under Saudi law. In line with the decision of His Honour Judge Horowitz QC in H v S [2011] EWHC B23 (Fam) which I respectfully follow, the talaq is entitled to be recognised as valid in England and Wales. In my judgment, it is the validity of the overseas divorce or annulment which is the crucial matter and not the validity of the marriage under English Law.”
20.	Of course Mr Anelay did not have the advantage of oral submissions from Mr Turner nor did he have the judgment of Mr Justice Holman which had been given only a few days earlier on the 15th March.
21.	The effect of the order of Mr Anelay was to confirm that the wife’s application was well-founded, that the husband’s jurisdictional challenge failed and that a trial on the merits should follow with a five day time estimate.
22.	That brought the husband back into the lists with an appellant’s notice dated 30th April 2012. Having considered Mr Turner’s skeleton argument of the 21st May I granted permission to appeal jurisdictional issues by my order of 1st June.
23.	In preparation for the appeal Mr Turner filed a supplemental skeleton to emphasise the importance of the decision of Holman J in Asma Dukali. Mr Cusworth QC responded with a skeleton on the 8th October. We were thereby furnished with some 70 pages of skeleton argument canvassing a wide range of issues.
24.	So in opening the appeal Mr Turner identified six issues which he intended to develop. However, his essential jurisdictional challenge was expressed in issue 3 (a):-
“Was there ever a marriage sufficient to satisfy the provisions of s.12 of the 1984 Act?”
25.	It was agreed that we should take this as a preliminary point because, if Mr Turner made good his submission, all other issues became irrelevant.
26.	S.12 of the 1984 is in these terms:-
“12 Applications for financial relief after overseas divorce etc
(1)	Where –
(a) a marriage has been dissolved or annulled, or the parties to a marriage have been legally separated, by means of judicial or other proceedings in an overseas country, and
(b) the divorce, annulment or legal separation is entitled to be recognised as valid in England and Wales,
either party to the marriage may apply to the court in the manner prescribed by rules of court for an order for financial relief under this Part of this Act.
(2)	If after a marriage has been dissolved or annulled in an overseas country one of the parties to the marriage remarries that party shall not be entitled to make an application in relation to that marriage.
(3)	For the avoidance of doubt it is hereby declared that the reference in subsection (2) above to remarriage includes a reference to a marriage which is by law void or voidable.
(4)	In this part of this Act except sections 19, 23, and 24 “order for financial relief” means an order under section 17 or 22 below of a description referred to in that section.”
27.	Mr Turner’s essential submission is that it is as much incumbent on an applicant to prove a marriage valid or void according to the lex loci celebrationis as it is to establish that the overseas divorce etc is entitled to be recognised as valid in England and Wales. 
28.	So he says that here there was plainly not a marriage valid or void according to English law but only what has come to be labelled in recent authority as “a non- marriage”: see the decision of Bodey J in Hudson v Leigh [2009] 2 FLR 1121, a judgment endorsed by this court on the 9th December 2009 when rejecting the oral permission application advanced by Mr LeGrice QC.
29.	The essential contrary argument from Mr Cusworth was that the requirement on the applicant was to prove the divorce etc. was entitled to recognition as valid in this jurisdiction. The requirements of section 12 (1)(a) were satisfied because the marriage between the parties was valid according to Saudi law. That flows from the fact that the marriage had been dissolved according to Saudi law. 
30.	Mr Cusworth advanced other submissions drawn from contrasting the language of Part IV, which introduces a distinctly different code for Scotland, with the language of Part III. He also relied upon the content of the Law Commission Report (No. 117), particularly at paragraphs 34-37.
31.	I do not find it necessary to consider these additional submissions for the simple reason that this is not a question of law that comes to us devoid of previous authority. We have the recent decision of Holman J. Unless Mr Cusworth can persuade us that Holman J was wrong in law, this appeal succeeds.
32.	The reasoning of Holman J is expressed in paragraphs 42-46 of his judgment which I set out in full:-
“42. Why, then, should the marriage, albeit a non-marriage here, not “count” as a marriage for the purposes of section 12 and Part III of the 1984 Act? Parliament has not defined what it means by the word “marriage” where it appears in section 12 or in Part III generally. It may be expected that many, if not most, of the marriages which are relied upon for the purposes of applications under Part III are marriages contracted abroad, often with far, far less formality than the formal and very well evidenced marriage in the present case.
43. If the parties had travelled to Morocco and done there exactly what they did at the consulate in London, then their marriage would unquestionably have been valid not only there but here. Further, section 12 refers not only to divorce but to annulment, and accordingly relief may be obtainable under Part III of the 1984 Act, not only where a valid marriage has been dissolved by an overseas divorce, but also where an irregular or invalid marriage has been annulled. On the facts of the present case, however, the marriage was fully valid in Morocco and the process was one of divorce, not annulment.
44.  Despite all these points and considerations, however, I have reached the firm view, submitted not only on behalf of the husband but also by counsel on behalf of the intervening Attorney General, that the word “marriage” in section 12 Part III generally of the 1984 Act must mean, and can only mean, a marriage which is, or under English Law is recognised as, a valid or at least a void marriage. That is the natural meaning and scope of the word “marriage” when used in this context. Far from needing to use words of limitation or exclusion to limit “marriage” to a valid or void marriage, Parliament would have needed to use express words of inclusion if it had intended to enlarge and include within the word “marriage” even what is characterised here as a non-marriage. That is particularly so in the case of a marriage which was actually contracted in England. If the marriage relied upon is a ceremony which took place here but which was so irregular and altogether outside the scope of the Marriage Acts as not to be a marriage at all, not even a void one, then in my view it would require clear words from Parliament before it could fall within the scope of section 12 and Part III.
45. I am fortified in this view by the mischief at which Part III of the 1984 Act was aimed. In Agbaje v Agbaje [2010] UKSC 13, [2010] 1 FLR 1813, there was no issue as to the validity of the foreign Nigerian marriage. However, in paragraphs 4 to 7 of the judgment of the whole court, given by Lord Collins of Mapesbury, the Supreme Court described the background to Part III of the 1984 Act. Lord Collins referred to the liberality of the rules relating to the recognition of foreign divorces, and continued at paragraph 5:
“As a result the parties were regarded as no longer married, and the court was not able to make an order in her favour for financial relief…”
46. As that passage indicates, and as has always been my own understanding, the mischief is a situation in which the English court could, on a sufficiently timely application to it, have regarded or treated the parties as married and could have made a financial order, but for the earlier interposition of a foreign divorce or annulment. On the facts of the present case, as I have held, the English court could never have granted a decree, whether of divorce of nullity, and could never have granted discretionary financial relief under the Matrimonial Causes Act 1973. ”
33.	I am in complete agreement with this reasoning. The 1984 Act cannot be divorced from the 1973 Act, consolidating the provisions of the Matrimonial Proceedings and Property Act 1970 which had introduced the sweeping reforms that enabled applicants to seek the equitable redistribution of family assets in the discretion of the judge. Experience of the operation of the reforms had shown that in some instances that right of application was lost in consequence of the intervention of a foreign divorce entitled to recognition under our liberal regime. 
34.	Justice required that spouses in that position should not be deprived of their right to apply. But fundamental to that right is the existence of a marriage recognised as valid or void by the lex loci celebrationis. 
35.	It would be fanciful, and clearly contrary to policy, to suggest that a person without that foundation could acquire a right of application by virtue of the pronouncement of a talaq divorce in some other jurisdiction. 
36.	Mr Turner submitted that the dismissal of the originating summons of 30th August 2002 would not leave this wife without remedy. She could apply to commit the husband for breach; alternatively she could apply summarily for the enforcement of his undertakings under the provisions of Part 33 of the Family Procedure Rules 2010.
37.	Such a prospect is anything but reassuring. These parties have shown a disproportionate zeal for dispute. They have spent huge sums on litigation since December 2002, which is nearly a decade of strife. Quite apart from being wasteful of family money it is also wasteful of the stretched resources of our family courts. Whether exhausted or not it is high time that they laid down arms and compromised. If they need a mediator the Court of Appeal mediation scheme is wide open to assist them. Good sense would suggest the negotiation of a single capital payment rather than continuing financial obligations which provide a rich fuel for conflict.

Lady Justice Black:
   I agree.
The Hon. Mr. Justice Hedley: 
38.	I have had the advantage of reading in draft the judgment of My Lord, Thorpe, LJ, and find myself in full agreement with all that he says.  I venture to add a short judgment of my own to emphasise the limits of this case.
39.	There have been before the High Court in recent times a plethora of cases which raise the question as to whether this or that particular ceremony of marriage contracted in breach of the provisions of the Marriage Act 1949 (as amended) is not a marriage at all or whether it has such a nature as is capable of sustaining a Petition of Nullity as a void marriage.  A clear example, referred to by Thorpe LJ, is the judgment of Bodey J. in Hudson -v- Leigh [2009] 2 FLR 1121; its most recent expression is found in the judgment of Moylan J. in MA -v- JA [2012] EWHC 2219 (Fam).  What is noteworthy about this line of cases is that they are all first instance decisions.
40.	It is my respectful view that this case is not intended further to illuminate that line of cases each of which must continue to be decided on its own facts.  The facts of this case, as appears from paragraph 7 of Thorpe LJ’s judgment, make plain that this ceremony of marriage could never have achieved the status even of a void marriage in English law.  This case decides that in an application under Part III of the 1984 Act there must not only be a foreign divorce but that such divorce must be based upon a marriage which in the words of Holman J. in Dukali. “….is, or under English law is recognised as, a valid or at least a void marriage.”  I agree with that and with the conclusion that there was no such marriage in this case.  Thus this appeal should be allowed.