Syrian husband fails in bid to have Muslim divorce recognised

By 21 March 2022News

A former resident of Bristol has failed to persuade the family courts that a traditional Muslim divorce was valid under English law.

He and his wife were married in the Syrian town of Aleppo in 2000. They later moved to England, before returning to Syria in 2010. By this point the couple had two children.

Not long afterwards, the husband went to a local divorce court and declared talaq. This is the commonest form of Islamic divorce, and one that is often the source of controversy. Talaq involves the husband making a formal declaration of repudiation. This is followed by a waiting period of approximately three months – called ‘iddah in Arabic – designed to allow the couple to reconcile. If they do not, the divorce then comes into force.

In this case the husband and wife reconciled before completion of the ‘iddah and the couple travelled back to Britain once more, without announcing the reconciliation to Syrian authorities. In 2014, settled in Bristol, they had a third child but at the end of the same year the husband made a new declaration of talaq, directly to his wife, with family members back in Syria acting as witnesses via video call. The wife rejected this, because talaq is does not constitute a legally valid divorce under English law.

When the husband then returned to Syria, the local authorities recorded his status as divorced, on the basis of the talaq declaration in 2010. This allowed the husband to remarry later the same year. In 2016, however, the wife petitioned family authorities in Syria to revoke their record of the 2010 talaq and they eventually agreed to do so because the couple had reconciled before the end of ‘iddah.

Back in Bristol, the wife also applied for a declaration in the family courts that the couple remained legally married. This was followed by her own petition for divorce. Both applications were granted, with the divorce reaching the penultimate decree nisi stage in November. However, the declaration that she and her husband had still been legally married was later aside for reconsideration by the courts, something which only occurred this year.

The Court once again ruled in favour of the wife. The husband had relied upon the 2010 talaq, which had been pronounced while the couple lived in Syria. If that had been completed in the Syrian courts, it would automatically also have been recognised as a valid divorce in the English courts. Section 46 of the Family Law Act 1986 states that:

“The validity of an overseas divorce, annulment or legal separation obtained by means of proceedings shall be recognised if—

(a)the divorce, annulment or legal separation is effective under the law of the country in which it was obtained.”

Therefore, explained Mr Justice Bromilow:

“…[the wife’s] application for a declaration as to marital status in respect of the parties’ marriage is successful, it being confirmed that the divorce that the respondent states took place on 23 September 2010 was not effective in Syria and was not therefore an overseas divorce to be considered as capable of recognition in the United Kingdom, and further, that at the date of the commencement of divorce proceedings in the United Kingdom, the parties were therefore married.”

The husband appealed this ruling, arguing that while the 2010 talaq had been revoked, the second in 2014 was valid in England. Mr Justice Poole was not persuaded, citing section 44 of the Family Law Act 1986 which declares that:

“…no divorce or annulment obtained in any part of the British Islands shall be regarded as effective in any part of the United Kingdom unless granted by a court of civil jurisdiction.”

The husband had made no attempt to turn the 2014 talaq into a legally valid divorce certified by an English court of “civil jurisdiction” (i.e. not a religious court). Therefore, the Judge explained, the former couple were still legally when the wife had sought her declaration.

“The parties’ marriage did not, like Schrödinger’s cat, both exist and not exist at the same time.”

Read the full ruling here.