![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales Court of Appeal (Civil Division) Decisions |
||||||||||
|
THE FUTURE OF BAILII DEPENDS ON USERS LIKE YOU
If you want to be able to use BAILII in the future, please consider making a donation to celebrate BAILII's 25 years of providing free access to law.
Your donation, no matter the size, will help BAILII maintain the legal databases that you and many other users rely on. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
| ||||||||||
|
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Sharbatly v Maha Mustafa Shagroon [2012] EWCA Civ 1507 (21 November 2012) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2012/1507.html Cite as: [2013] 2 WLR 1255, [2013] Fam Law 394, [2013] Fam 267, [2012] WLR(D) 337, [2012] EWCA Civ 1507, [2013] 1 FLR 1493, [2013] 1 FCR 467 |
||||||||||
[New search]
[Context
]
[View without highlighting]
[Printable RTF version]
[View ICLR summary: [2012] WLR(D) 337]
[Buy ICLR report: [2013] 2 WLR 1255]
[Help]
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
MR RICHARD ANELAY QC
SITTING AS A DEPUTY JUDGE
FD01005848
Strand, London, WC2A 2LL |
||
B e f o r e :
LADY JUSTICE BLACK
and
MR JUSTICE HEDLEY
____________________
ADNAN HASSAN SHARBATLY | Appellant |
|
| - and - |
||
MAHA MUSTAFA SHAGROON | Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Nicholas Cusworth QC and Justin Warshaw (instructed by Sears Tooth) for the Respondent
Hearing date: 18th October 2012
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Lord Justice Thorpe :
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.
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.
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.
various
case management orders. Both parties were represented by leading counsel until the final hearing which was listed before Mr Anelay.
"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 asvalid
in England and Wales" see s12 (1) of the 1984 Act.
53. I am satisfied that there irrevocable talaq prounounced by the Father isvalid
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."
"Was there ever a marriage sufficient to satisfy the provisions of s.12 of the 1984 Act?"
"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 asvalid
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 lawvoid
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."
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.
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.
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.
"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 andvery
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 beenvalid
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 firmview,
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 thisview
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. "
valid
or
void
by the lex loci celebrationis.
virtue
of the pronouncement of a talaq divorce in some other jurisdiction.
Lady Justice Black:
I agree.
The Hon. Mr. Justice Hedley:
venture
to add a short judgment of my own to emphasise the limits of this case.
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.
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.