Sharbatly v Maha Mustafa Shagroon

Section 12 of the Matrimonial and Family Proceedings Act 1984 requires an applicant for Part III financial relief to establish more than a foreign divorce recognised in England and Wales. The divorce must have dissolved a marriage which is valid, or is recognised by English law as valid or void.

Part III protects a right to financial relief which an English court could otherwise have exercised but for a recognised overseas divorce. It does not create a right where the English court could never have treated the parties as married. A foreign talaq based on an English non-marriage cannot supply the missing foundation.

The parties, both Saudi nationals, underwent a purported Islamic marriage ceremony at a London hotel in 1994. The husband was already married and the ceremony did not comply with the English statutory requirements for marriage or with any civil ceremony.

Following a Saudi talaq, the wife made an application for financial relief under Part III of the Matrimonial and Family Proceedings Act 1984. A deputy High Court judge rejected the husband’s jurisdictional challenge and directed a trial on the merits. The husband appealed.

The central issue was whether a recognised overseas divorce alone satisfied section 12, where the underlying English ceremony was a non-marriage rather than a valid or void marriage.

1. Appeal allowed. Lord Justice Thorpe held, with whom Lady Justice Black agreed, that the deputy judge had adopted the wrong jurisdictional approach. The wife could not pursue Part III financial relief on the facts found.

2. Section 12 of the Matrimonial and Family Proceedings Act 1984 requires both a foreign divorce entitled to recognition and a qualifying marriage. The qualifying marriage must be valid, or recognised in English law as valid or void. The court approved Holman J’s reasoning in Asma Dukali v Mohamed Lamrani [2012] EWHC 1748 (Fam).

3. Part III must be read with the financial-relief scheme under the Matrimonial Causes Act 1973. Its purpose is to preserve a financial-relief claim which an English court could have entertained had a recognised foreign divorce not intervened. It does not confer relief where no such claim could ever have existed because the parties were not married in English law.

4. The London ceremony was plainly incapable of being a valid or void marriage under English law. The Saudi talaq could not convert that non-marriage into a foundation for a Part III application. The recognised status of the talaq was therefore insufficient.

5. Hedley J agreed and stressed the confined effect of the decision. It did not decide the fact-sensitive boundary between a non-marriage and a void marriage in other cases; here, the ceremony could never have achieved even void status.

• Court of Appeal (Civil Division) — Allowed the husband’s appeal: [2012] EWCA Civ 1507.

• High Court of Justice, Family Division — Mr Richard Anelay QC, sitting as a deputy judge, rejected the husband’s jurisdictional challenge to the wife’s Part III application and directed a trial on the merits. That ruling was displaced on appeal.