Hussain v Parveen: Islamic divorce found to be invalid
By Aysha Chouhdary, associate Family Law solicitor at Irwin Mitchell
All family law practitioners are eagerly awaiting the decision in the recent case relating to Mahr. In the interim, we have had another vital case highlighting how Shariah issues continue to be intertwined with matters being heard in the family courts in England and Wales.
The case of Hussain v Parveen [2021] considered whether a Talaq (Islamic divorce) obtained in Pakistan was "an overseas divorce" capable of being recognised under ss. 45 and 46 of the Recognition of Divorces, Annulments and Legal Separations Act 1986 (‘the 1986 Act’).
The first issue was whether the court had jurisdiction to deal with matters given the divorce took place in Pakistan and the second issue was whether the Islamic divorce had been transnational, so incapable of recognition in England and Wales.
The petitioner husband's contention before the court was that when he married the respondent wife, her overseas divorce with her first husband was transnational and therefore not valid in this jurisdiction under the 1986 Act. As a result, the husband said, that the marriage between him and the respondent should be annulled. The court had to decide on this issue as well as deciding whether it had jurisdiction to deal with this matter.
The court considered the Domicile and Matrimonial Proceedings Act 1973 and the Family Law Act 1986 and held that it did have jurisdiction to consider the validity of overseas divorces.
It was accepted that the divorce that had been obtained by the respondent wife in relation to her first husband was valid and recognised in Pakistan. In terms of the process of this divorce, the respondent's first husband had pronounced Talaq in England in written form, by way of a letter. The letter went to a mosque in Bradford where it was converted into a divorce certificate. The divorce certificate was issued by the mosque in Bradford and sent to the respondent in Pakistan. It was then provided to the local Union Council in Pakistan who declared the effectiveness of the Islamic divorce.
The overseas divorce was declared to be transnational and not capable of recognition in this jurisdiction as the proceedings had not all taken place in the other jurisdiction – part in England and concluded in Pakistan.
There's a growing trend in dealing with part of the Talaq process in the UK and the other part in another country. Clients looking to go through the Talaq or Khulla process need to consider how they deal with the procedure very carefully as it can have an impact on their family life in the future, such as when they remarry, as was the case here.
