Cambridge Family Law Practice

A Pakistani woman whose divorce from her first husband was not recognised under English law was nevertheless legally married to her second husband, the Court of Appeal has declared.

The wife, from Pakistan, married her first husband in 2000, but he returned to England not long afterwards and she did not accompany him. In 2008 he unilaterally conducted a talaq (traditional Muslim divorce), and a certificate certifying this was issued by a local mosque in Bradford. He sent this to his ex-wife and she then registered the talaq with the Pakistani authorities, leaving her free to remarry within Pakistan.

Later the same year, the wife married another man resident in the UK. The wedding again took place in Pakistan, but this time, when the second husband returned to the UK in March 2009, she followed. Both husband and wife have remained in the UK ever since.

Nine years later however, this second marriage broke down and the second husband applied for divorce. This reached the penultimate ‘decree nisi’ stage in 2019 (now referred to as a ‘conditional order of divorce’). Then, unexpectedly, the second husband applied to set aside the decree nisi, arguing that his wife had still been legally married to her first husband at the time he had married her.

This application was dismissed and the second husband was told to file an application for ‘nullity’ instead, meaning that his own marriage had never been legally valid. The husband appealed, unusually receiving support from the Queen’s Proctor. The latter, now known as the King’s Proctor, is a solicitor appointed by the Crown to intervene in divorce cases where suspicions have arisen over concealed information.

In the Court of Appeal, Lord Justice Moylan, Lady Justice Asplin and Lord Justice Stewart-Smith considered the Family Law Act 1986 and the precedents set by a number of previous cases. They concluded that it was true that the wife’s talaq divorce from her first husband had not been valid under English law, but nevertheless, this had not prevented her from legally marrying her second husband in Pakistan, where she had lived at the time. Both her marriages had been fully recognised in Pakistan, and should therefore also be recognised as valid by the family courts in England, the Judges declared.

Lord Justice Moylan explained:

“…the wife’s marriage to the husband is valid as she had the capacity to marry because her previous divorce was effective under the law of Pakistan. The fact that that divorce is not entitled to recognition under the [Family Law Act] 1986 does not mean that she did not have the capacity to marry.”

Kathryn Evans, one of the partners here at Cambridge Family Law Practice, noted:

“This is a fascinating case that demonstrates the complexities can arise in multinational marriages, involving different jurisdictions and sets of laws.”

The full ruling is available here.