Islamic Family Law in the English Courts

AYESHA HASAN Barrister

There is an increasing number of cases coming before the courts in England arising from the conflict between English and Islamic law. In the days of British India it was not uncommon for judges adjudicating to hear about the conflicts of personal law, particularly between the Muslim, Hindu, Parsi, Christian, and Jewish people. There are now approximately two million Muslims living in England who wish to practise their religion and, in such circumstances, it is only natural that there will be occasions when their personal law will conflict with English law.

'MEHAR' OR 'DOWER'

The right of a wife in an Islamic marriage to pursue or claim her right to ‘mehar’ or ‘dower’ in the event of divorce or death of her husband is the kind of issue that is once again before the courts. A 26-year-old Pakistani woman, living in England, entered into a Muslim marriage (Nikah) in Karachi, Pakistan on 26 December 1992 with a 29-year-old British national, who had converted to Islam. Before the Nikah the man was told by the woman's father that he would have to agree to pay a 'mehar' (sum of money) as part of the contract of marriage. The figure agreed upon was £10,000, payable upon either the husband's death or divorce. The parties then returned to live in England. Eight months later on 20 August 1993 the parties had a civil ceremony in Bedford. Eighteen months later the marriage broke down and the wife petitioned for divorce citing the civil marriage as the marriage to be dissolved. The petition was undefended and the wife obtained her decree absolute on 23 May 1995. The wife then sued under contract law for the mehar of £10,000, citing the divorce as the event upon which she relied. Mahmood J, in a very old decision (Abdul Kadir v Salima (1886) 8 All 149, at p 157), defined 'dower' as follows:

'Dower, under Mohammedan law, is a sum of money or other property promised by the husband to be paid or delivered to the wife in consideration of the marriage, and even where no dower is expressly fixed or mentioned at the marriage ceremony, the law confers the right of dower upon the wife.'

Under the Muslim system of jurisprudence the main object of dower is to protect the wife against the arbitrary exercise of the power of divorce by the husband. In Muslim law the husband can divorce his wife at any time and without any reason; therefore, the dower serves as a check upon the capricious exercise by the husband of his power to terminate the marriage at will.

The husband in court argued as follows. First, that he did not understand the concept of the mehar nor that he would ever have to pay the sum and secondly, that as the wife had instituted the divorce she had exercised her right of 'Khula'. The Privy Council in Moonshee Buzulul-Raheem .v. Luteefut-oon-Nissa (1861) 8 Moo IA 379, at p 395, Cases 159, at p 167. defined 'Khula' as follows:

'A divorce by Khula is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for the release from the marriage tie. In such a case the terms of the bargain are a matter of arrangement between the husband and wife, and the wife may, as the consideration, release her dyn-mohr and other rights, or make any other agreement for the benefit of the husband.’

As a general rule, in Khula the wife makes compensation to the husband or gives up a portion of her mehar; but this is not absolutely necessary.

In the alternative, the husband argued that by petitioning for a divorce on the civil ceremony the wife had failed to dissolve the first marriage which had been contracted in Pakistan and which was recognised and valid in the eyes of the law in England. Thus the parties were still married and there could be no claim upon him to pay the mehar.

The issues this case raised were as follows.

(1) Should a party be allowed to claim in contract a sum of money (mehar) that was promised in the course of a marriage contracted in a foreign country?
(2) Should a party be allowed to claim mehar in a marriage entered into in England?

(3) What was the effect of the practice of going through two ceremonies of marriage, if any?

It was held in Berthiaume .v. Dastous [1930] AC 79, at p 83 that 'if a marriage is good by the laws of the country where it is effected, it is good all the world over, no matter whether the proceeding or ceremony which constituted marriage according to the law of the place would not constitute marriage in the country of the domicile of one or other of the spouses'.

The status of a potentially polygamous marriage and a second marriage ceremony in England were considered in a more recent decision by one of the former Presidents of the Family Division, Sir John Arnold in Amadasttn v Amadasun [1992] 1 FLR 585. The facts of the case were that the parties entered into a customary ceremony of marriage in Nigeria in 1962. The marriage was potentially polygamous. Subsequently, they entered into a second ceremony of marriage in England at the registry office in 1970, rendering the marriage monogamous. The wife petitioned on the ground that the parties had been separated for 5 years. There was evidence, by a highly qualified expert, that the Nigerian ceremony was a valid and effective customary ceremony of marriage, according to Nigerian law and recognised in the UK. Sir John Arnold P held:

' . . . evidence was placed before me by a highly qualified expert, who has given evidence . . . and has been able to say that the ceremony was a valid customary ceremony, recognisable in the courts of Nigeria. Therefore I am now in a position to say, which I do, that the Nigerian customary ceremony of 1962 was a valid marriage ceremony and caused these two persons to be married. The result of that is that the ceremony at the registry office in Lambeth in 1970 was of no legal consequence in relation to joining husband and wife together as spouses, whatever other effect it may have had.'

In Shenaz .v. Rizwan [1965] 1 QB 390, another case concerning the issue of mehar, the parties were married in India on 21 January 1955 in accordance with Islamic law; the marriage contract provided that the wife was to have deferred mehar or dower, payable to her in the event of the husband's death or a divorce. It was argued that under Islamic law such right to dower, once it had accrued as payable, was enforceable by civil action and was regarded as an assignable proprietary right for the protection of which the wife was entitled to a lien over any property of her spouse of which she had possession or control. In the action by the wife after the valid dissolution of the marriage, claiming the amount of the dower on the ground that the claim was a lawful contractual one enforcing a proprietary right arising out of a lawful contract of marriage, the husband claimed that the marriage was polygamous or potentially polygamous and that the English courts had no jurisdiction over or should not extend jurisdiction to the wife's claim, since the provision in the marriage relied on was in consideration of a polygamous or potentially polygamous marriage; alternatively, that the claim was in the form of matrimonial relief; in the further alternative, that the claim was unenforceable, since the contract of marriage and the dower provision were contrary to the policy and good morals of English law.

On the trial of the issues raised by the defence as a preliminary issue Winn J held:

(1) that a polygamous or potentially polygamous marriage which was lawful by the personal law of the parties and by the lex loci celebrationis was not regarded as an unlawful marriage under English law, although the English courts would not enforce such a marriage or any right arising specifically by virtue of the marriage relationship between the parties;

(2) the wife was seeking to enforce a right in personam, arising not out of the relationship of husband and wife but from a contract entered into in contemplation and consideration of the marriage, and was therefore not a matrimonial right which the court would refuse to enforce;

(3) the fact that no such claim had hitherto been recognised by the English courts was not a sufficient reason why the court should not accept jurisdiction; accordingly, the pleas in the defence were insufficient to exclude the action from the jurisdiction of the court.

The judge said, per curiam, that as a matter of policy, in view of the large number of Muslims resident in England, the law should lend its aid to women who come to the UK as a result of a Muslim marriage by enforcing the husband's contractual promise, rather than leave them without recourse to legal assistance.

VALIDITY OF OVERSEAS DECREES

With the world now being reduced to a 'global village', and travel from one continent to another becoming cheaper and easier, some parties in a divorce may have various legal options, depending on their personal law, by which they can seek to be governed, to achieve what may be a more favourable result. For example a wife was 26 years old, and lived and was domiciled in Pakistan. The husband was 29 years old, lived in England and held dual nationality - British and Pakistani. The parties married in Lahore, Pakistan on 24 December 1995 by undergoing a Muslim Nikah ceremony. The husband returned in January 1996 to live in England and his wife joined him in February 1996. By May 1996 matters had reached such a stage that it was considered by the husband that the marriage had broken down. The husband sought to petition for divorce in England, but was prevented from presenting a petition by virtue of s 3 of the Matrimonial Causes Act 1973 which provides that 'no petition can be presented for divorce before the expiration of the period of one year from the date of the marriage'. Therefore in this case the crucial date was 24 December 1996. The husband then decided to go to Pakistan to pronounce a 'talaq'. On 18 May 1996 he pronounced a talaq three times in the presence of two witnesses and in compliance with s 7 of the Pakistan Muslim Family Law Ordinance 1961 - the principal legislation applying to all Muslim citizens of Pakistan wherever they are. Section 7 of the Pakistan Muslim Family Law Ordinance 1961 provides as follows:

'(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman a notice in writing of his having done so, and shall supply a copy thereof to the wife.

(2) Whoever contravenes the provisions of subsection (1) shall be punishable with simple imprisonment for a term which may extend to one year or with a fine which may extend to 5000 rupees or with both.

(3) Save as provided in subsection (5) talaq unless revoked earlier, expressly or otherwise, shall not be effective until the expiration of 90 days from the day on which notice under subsection (1) is delivered to the Chairman.

(4) Within 30 days of the receipt of notice under subsection (1) the Chairman shall constitute an Arbitration Council for the purpose of bringing about a conciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such a reconciliation.

(5) If the wife be pregnant at the time talaq is pronounced, talaq shall not be effective until the period mentioned in subsection (3) or the pregnancy, whichever later, ends.

(6) Nothing shall debar a wife whose marriage has been terminated by talaq effective under this section from remarrying the same husband, without an intervening marriage with a third person, unless such termination is for the third time so effective.'

By virtue of the fact that the husband was a Pakistani citizen he had the option of effecting a talaq in Pakistan and seeking its recognition in England as a valid overseas decree.

Part II of the Family Law Act 1986, in particular ss 45 and 46, sets out the requisite criteria that govern recognition of overseas decrees. These sections should be read in conjunction with ss 51 and 52 of the Act. With regard to the recognition of the Pakistani divorce, s 46 sets out the criteria to be satisfied. However, there is one important caveat set out in s 45 which states that recognition is subject to ss 51 and 52. Section 51 deals with the refusal of recognition of the validity of an overseas divorce, particularly at s 51(3)(a). Wall J held in D v D (Recognition of Foreign Divorce) [1994] 1 FLR 38, at p 51H that 'the right to recognition under s 46 is subject to a discretionary power in this court to refuse recognition if the criteria set out in s 51 are not satisfied'. It is clear from Wall J's decision that notwithstanding the validity of an overseas divorce, the discretion in the English court to refuse to recognise under s 51 must, therefore, be capable of overriding the otherwise mandatory recognition to be afforded under s 46. Therefore, the wife disputed the validity of the overseas divorce and urged the court not to recognise the divorce because the parties lived in England.

The issues raised in the case were:

(1) whether the court should recognise an overseas decree in such circumstances; and

(2) whether one party should be allowed to take advantage of another country's laws if more favourable, in order to achieve a different result.

One of the leading cases on the point was Quazi .v. Quazi [1979] 3 All ER 897 where the husband and wife were born in India and were married there in 1963. Both were Pakistani nationals and Muslim. The parties resided in a number of places in the Far East, but in February 1973 they moved to Pakistan. The marriage was not happy. The husband came to England in 1973, and in June 1974 the wife came to England on a temporary visit and lived separately from the husband. In July 1974 the husband went to Pakistan and pronounced a talaq under the Pakistan Muslim Family Law Ordinance 1961. As required by the Ordinance he gave notice to the wife and to a public authority. The husband returned to England and in 1975 presented a petition for a declaration, pursuant to the Recognition of Divorces and Legal Separations Act 1971, that the marriage was lawfully dissolved, inter alia, by the talaq. The judge granted the declaration. He held that the talaq divorce had been obtained by means of 'judicial or other proceedings' in Pakistan and was effective under the law of Pakistan and thus could be recognised as valid under s 2 of the 1971 Act. The Court of Appeal reversed his decision. On appeal to the House of Lords by the husband the issue was whether the talaq divorce was obtained by 'other proceedings' within the meaning of s 2(a) of the 1971 Act and was effective under the law of Pakistan. The wife contended that the words 'other proceedings' meant proceedings which, by application of the ejusdem generis rule, were quasi-judicial. Lord Diplock held:

' . . . having regard to the policy of the 1971 Act as a whole and the purpose for which it was enacted, the words "or other proceedings" in s 2(a) included all proceedings for divorce, other than judicial proceedings, which were legally effective in the country where they were taken.'

The talaq divorce obtained under the 1961 Pakistan Ordinance followed the acts of pronouncing talaq and giving of notice to the authority and the wife, which, although not judicial in character, fell within the description of 'other proceedings' in s 2(a), as they were acts officially recognised by the law of Pakistan as leading to an effective divorce, and without which divorce by talaq could never become effective in that country. It followed, therefore, that the husband was entitled to a declaration that the marriage had been lawfully dissolved by