I often come across situations where issues surrounding where an Islamic religious marriage (the Nikah) or divorce (the Talaq) is called into question when taking place in England. More often than not it is where the Nikah has taken place in England but then there is no additional civil ceremony so the marriage will not be recognised as legally valid under English law. This creates all sorts of problems because the parties are classed as cohabitees and the law for cohabitees is much more limited than that of a couple who have a legally valid marriage.
It has also been found to create difficulties for a party who thought they were divorced under English law as the divorce is recognised in Islamic law but not in English Law. A recent case highlighted how Islamic divorces are recognised in the courts of England and Wales.
This issue arose in the case of Hussain v Parveen 2021 EWFC 73, which examines the issues that should be considered in respect of the recognition of foreign divorces.
In this case Mr Hussain (petitioner) argued that Mrs Parveen (respondent) was still married to her first husband as the divorce to him was “transnational” in nature and could not be recognised in England and Wales, so he sought an order that the marriage be annulled which basically means that the marriage was never valid in the first place. This is hugely significant if finances are at stake.
Mrs Parveen’s first husband pronounced the Talaq (Islamic divorce) in England in written form by way of a letter. The letter went to the Bradford Mosque, and this was converted into a divorce certificate. The divorce certificate was sent to Mrs Parveen in Pakistan and accepted by the Local Union Council in Pakistan. Mrs Parveen argued that the divorce to her first husband should be recognised as courts in England and Wales do have jurisdiction to question the validity and recognition of the overseas divorce.
The key issue in this case was whether this was a transnational divorce. Unfortunately for Mrs Parveen, the courts found that the divorce was transnational in nature and was not accepted as a divorce in this jurisdiction. The reason being that whilst the Talaq was accepted in Pakistan, having been initiated in England and concluded in Pakistan, it was found that as not all the steps regarding the divorce had taken place in Pakistan, then the first divorce was not capable of being recognised in this jurisdiction as an ‘overseas divorce’. However, it did not alter the validity of the first divorce in Pakistan.
If initiating Islamic divorce (Talaq, Khula, Faskh) then it is clear that the whole process must be done in the country that the legal marriage took place but if the marriage took place in England and Wales being an Islamic marriage followed up with a civil registration of the marriage, then parties must issue divorce proceedings in the courts of England and Wales. Likewise, if the Nikah has taken place in England, you must ensure that you also have a civil ceremony so as to have a legally valid marriage.
Shamin Ali is an Associate Solicitor within Tilly Bailey and Irvine’s private family law department and can assist with matters relating to foreign divorce.
If you’d like to speak to Shamin, or another member of the private family team, contact us on 01740 646000, or fill in an online enquiry form and someone will be in touch.
Call: 01740 646000