Ismail v Choudhry

A decree absolute made before the statutory six-week period has expired is void unless the period has been shortened on application. Where the validity of a foreign marriage depends on a period of Iddah, and expert evidence has not addressed whether a prior marriage was void or voidable, the appellate court should not substitute a final declaration. It should remit the matter for rehearing so that the unresolved foreign-law issues and evidence can be properly examined. The importance of marriage validity, including its consequences for parental rights and property, supports that cautious course.

The appellant challenged an order of Her Honour Judge Williams dated 23 July 2013, made in the Kingston-upon-Thames County Court and Family Court under case number KT11D00364. The judge had declared valid a Nikah ceremony said to have taken place in Pakistan on 15 December 1993.

The appeal concerned whether the judge had wrongly relied on a decree absolute dated 15 September 1993, and whether a corrected decree absolute dated 26 October 1993 should be admitted as fresh evidence. The central issues were the legal effect of the earlier decree absolute, the application of the Sharia-law Iddah period, and whether the Court of Appeal should substitute a declaration or remit the matter for rehearing.

The appeal was allowed and remitted to the Family Court for rehearing. Lady Justice King gave the judgment, with which Lord Justice Patten and Dame Janet Smith agreed.

1. Section 1(5) of the Matrimonial Causes Act 1973, read with section 2 of the Matrimonial Causes (Decree Absolute) General Order 1972, required six weeks to elapse after a decree nisi of divorce or nullity before decree absolute, unless the period was shortened on application. No such application had been made. Applying Manchand v Manchand [1995] 2FLR 590, the court held that a premature decree absolute was void.
2. The decree nisi relating to the wife's marriage to Mr A was dated 17 August 1993. The decree absolute dated 15 September 1993 was therefore premature and void. It did not dissolve that marriage. Any alleged marriage on 15 December 1993 was consequently bigamous. The corrected decree absolute dated 26 October 1993 fell within the three-month Iddah period and, on the evidence then available, would not support recognition of the marriage under Sharia law.
3. The court nevertheless declined to substitute a declaration that the marriage was invalid. The expert evidence had not addressed whether the fact that the earlier marriage was void, rather than voidable, affected the requirement for Iddah. That unresolved issue could determine validity and recognition and should have been explored at trial.
4. Validity and recognition of marriage were matters of public policy with significant consequences for parental rights, children and property. The case was remitted to the Family Court for urgent directions before the Designated Family Judge, with allocation to a different trial judge. The scope of the rehearing and management of the fresh evidence were left to that judge.

1. Court of Appeal (Civil Division): Appeal allowed under [2016] EWCA Civ 17. The matter was remitted to the Family Court for urgent directions and rehearing before a different judge.
2. Kingston-upon-Thames County Court and Family Court: Her Honour Judge Williams made an order dated 23 July 2013 declaring the Pakistani marriage valid and recognised in this jurisdiction.