Abbassi v Abbassi & Anor

A court hearing an international family dispute may, of its own motion, adjourn an issue for investigation by a foreign court, even where neither party initially seeks that course. The discretion is broad, and appellate interference is exceptional: the order should stand unless plainly wrong. Relevant considerations may include the foreign court’s ability to investigate allegations of fraud, the availability of witnesses, local language, law and customs, and the need for a full and fair trial. The absence of precedent for such an order does not make it an abdication of judicial responsibility. Each case depends on its facts, and judicial liaison arrangements may assist an expeditious determination.

A wife sought dissolution after her husband asserted that their marriage had already been dissolved by a talak pronounced in Pakistan. He applied under the Family Law Act 1986, section 55(1)(D), for recognition of the foreign divorce. The wife disputed the divorce and alleged forged or improperly procured documents. Wood J adjourned the validity issue for determination in Pakistan, while protecting the wife’s financial claims in England. The wife, supported by the Attorney General, appealed on the ground that the discretion had been wrongly exercised. The central issue was whether that case-management decision was plainly wrong.

Disposition

Lord Justice Thorpe granted permission to appeal but dismissed the appeal. Lady Justice Smith and Lady Justice Hallett agreed. The operative order was: appeal dismissed.

1. The appellant accepted that the judge had power to adjourn the determination of the alleged Pakistani divorce to Pakistan. The issue was therefore whether that discretion had been properly exercised.
2. A judge has both an opportunity and, in an appropriate case, a responsibility to adjourn proceedings for investigation in another jurisdiction of the judge’s own motion, even where that course was not initially sought by the parties. The discretion has a broad ambit, and it is exceptional for an appellate court to hold such an order plainly wrong.
3. The judge was entitled to treat marital status as a matter of overarching importance and to consider that the Pakistani court was better placed to investigate the validity of the alleged talak, including allegations of fraud and improper documentation. The availability of witnesses, local language, law and customs were legitimate considerations.
4. It was proper to have regard to Article 6 of the Human Rights Convention because the judge was seeking to secure a full and fair trial and protect the wife’s interests. Complaints concerning the nature or duration of the Pakistani proceedings, or the wife’s ability to participate in them, had not been put to the judge and did not demonstrate an improper exercise of discretion.
5. The risk of inconsistent findings concerning notice was sufficiently addressed by the order, which required the Pakistani court to determine notice only if it first concluded that notice was a necessary ingredient of a valid talak divorce. The referral was not an abdication of judicial responsibility. The absence of precedent did not prevent such an order, since each international family case depended on its facts.
6. The court observed that judicial cooperation, including liaison judges and the approach illustrated by Article 15 of the Brussels II Revised Regulation, could assist the expeditious determination of international family disputes. It proposed referring the matter to the liaison judge in Islamabad.

1. Court of Appeal (Civil Division): permission granted, but the appeal dismissed. [2006] EWCA Civ 355.
2. Family Division (Principal Registry) (Mr Justice Roderic Wood): adjourned determination of the alleged Pakistani talak divorce to the Pakistani court, subject to undertakings and directions protecting the wife’s financial claims.