Nazia Parveen v Assim Balal Hussain

Non-recognition of an overseas divorce under the Family Law Act 1986 does not, by itself, determine whether a party had capacity to marry. Section 14 of the Matrimonial Causes Act 1973 preserves the ordinary private international law rules for matters affecting validity. Capacity to marry, including capacity affected by bigamy, is generally governed by each party’s antenuptial domicile. Where capacity and divorce-recognition rules conflict, the court must adopt a flexible, justice-based approach. It should consider practical consequences and the policies favouring valid marriages and avoiding limping marriages. On the facts, Pakistani law governed the wife’s capacity, so her later marriage was valid despite English non-recognition of her earlier divorce.

Nazia Parveen married Assim Balal Hussain in Pakistan in December 2008. Before that marriage, her first husband pronounced a talaq in England. The divorce process was completed in Pakistan and was valid under Pakistani law, but it was not recognised in England and Wales because it was a transnational divorce.

In nullity proceedings, Arbuthnot J held that the earlier marriage remained undissolved in English law and that the later marriage was void under section 11(b) of the Matrimonial Causes Act 1973: [2021] EWFC 73. The appeal, in which the Queen’s Proctor intervened, concerned whether section 45 of the Family Law Act 1986 was determinative, or whether the wife’s capacity to marry was governed by Pakistani law.

1. Appeal allowed. The marriage was valid and was not void under section 11(b) of the Matrimonial Causes Act 1973. Moylan LJ gave the leading judgment; Asplin and Stuart-Smith LJJ agreed.
2. Section 14 of the Matrimonial Causes Act 1973 preserves the ordinary private international law rules for matters affecting the validity of a foreign-law marriage. The general rule, reflected in Brook v Brook (1861) 9 H.L.C. 193 and the authorities discussed in the judgment, is that capacity to marry is governed by each party’s antenuptial domicile. Bigamy is a matter of capacity.
3. The wife’s earlier divorce was correctly treated as a transnational divorce and was not entitled to recognition under section 45 of the Family Law Act 1986, applying the reasoning in In re Fatima [1986] 1 AC 527. That conclusion was not determinative of capacity to marry. Section 45 does not address the converse situation, where a divorce is recognised in the party’s domicile but not in England and Wales.
4. The conflict between the capacity and recognition rules must be resolved flexibly, according to what justice requires in the circumstances of the individual case. No universal rule gives one set of rules automatic priority. Relevant considerations include practical consequences, the policy of upholding marriages, the avoidance of limping marriages, and any applicable public policy.
5. Priority should be given to Pakistani law in this case. The wife had always been domiciled and resident in Pakistan before the marriage, and her earlier divorce was effective there. The public policy against divorces obtained by persons within the United Kingdom did not properly apply to her. The approach was consistent with Schwebel v Ungar (1964) 1 OR 430 and [1965] SCR 148. The marriage was therefore valid.

• Court of Appeal (Civil Division): in [2022] EWCA Civ 1434, allowed the appeal and held that the marriage was valid.
• High Court of Justice, Family Division: Arbuthnot J held that the marriage was void because the wife’s earlier divorce was not recognised in England and Wales: [2021] EWFC 73.