As the landscape of UK society changes, the challenges in cases coming before our courts are also constantly developing. Our courts are increasingly dealing with marriages and divorces which have taken place around the world, and being asked to interpret and make rulings on their effect in terms of s 51 of the Family Law Act 1986.
While such cases are not new, there is a rising trend in courts being asked to examine and interpret foreign marriages and divorces and determine their validity and effect. The issue of haq mehr claims (explained below) is also on the increase. My practice has been involved in several such cases, and it is likely that other family law practitioners are also being asked to advise on these. It is therefore useful for agents to be aware of these issues so we can advise and protect our clients when such matters arise.
In respect of foreign divorce, my practice has been involved in a number of recent cases throughout Scotland where divorce orders from across various countries in the Asian continent have been produced by one party (usually the husband), arguing that the parties are already divorced. In such circumstances, it is submitted that the opposing party can no longer be recognised as a spouse, and therefore cannot insist on matrimonial claims either in respect of the family home or from a share of the other matrimonial property.
In these cases, detailed investigations require to be undertaken in respect of the origin of the document. Evidence would also require to be obtained from the legal authority abroad who purportedly issued the certificate. These same arguments arose in a recent case in Aberdeen Sheriff Court. Detailed investigations were undertaken urgently and evidence and affidavits obtained to confirm that the document produced was not one which was in the official records and thus had never been issued by the authority. By pushing for a declarator of non-recognition of the dubious “divorce”, the solicitor can have the court declare this invalid, thus opening the route for their client to be recognised legally as the spouse and seek orders giving effect to her rights.
It is also useful to note the very recent decision from the Court of Appeal in England, Secretary of State for Work & Pensions v Akhtar  EWCA Civ 1353. In this case Lord Justice Moylan examined the issue of whether a polygamous marriage validly entered in Pakistan and allowed under Pakistani law could be given legal recognition in England. The respondent, the second wife of a deceased Pakistani man, sought to be recognised as his “spouse”, thus entitling her to bereavement benefits. She had married her husband in Pakistan at a time when he was domiciled and had married in England. Prior to their marriage, the husband had pronounced a talaq divorce in the UK to his first wife, and they separated. The talaq was not effective under English law, in terms of s 44 of the Family Law Act 1986. The talaq was a religious form of divorce and was not valid in the UK. However it was considered sufficient under Pakistani law, thus allowing or freeing the husband to remarry.
He travelled to Pakistan and entered into a second marriage with the respondent. He divorced his first wife in England a few years later. It was therefore at this stage that his marriage to the respondent became monogamous under English law. He died a few years later. At the time of his death therefore he was married to the respondent in a monogamous marriage.
Examining the validity of the respondent's marriage, Lord Justice Moylan took the view that “the word 'spouse' cannot mean a party to a marriage which is void under English law, for the simple reason that a party to a void marriage is not a spouse”. He went on to say that “It is the bigamous nature of the marriage which is the relevant and important feature, not that the marriage was polygamous nor that the marriage was a religious ceremony.” That was the case even though the respondent was the only surviving spouse at the time of the husband's death. As a void marriage, it could not come within the scope of the Social Security (Family Allowances and Polygamous Marriages) Regulations 1975. The court further held that the 1975 Regulations did not breach the respondent’s rights under article 14 ECHR.
As an aside, it is interesting to compare the above to historic Scots cases where children born out of wedlock were deemed illegitimate. As societal perceptions changed the law recognised this as unjust or unfair, and subsequent marriage of their parents was allowed to change the status of such children allowing them to become legitimised through the marriage. In the Akhtar case, given that the husband divorced his first wife, could the law change and develop in future to allow the subsequent divorce in the first marriage to effectively legitimise the second marriage, making it valid by dint of the divorce. Just a thought but worth considering.
The issue of second wives and second marriages in other jurisdictions is also not a new phenomenon, but the treatment of such marriages by the courts raises certain very interesting implications. This judgment serves to remind us of how the courts view such marriages at present and how we should advise our clients.
Haq mehr claims
An Islamic marriage has some key elements without which the marriage is invalid. Mehr is one of those compulsory elements. The mehr can be in the form of money or property and is chosen by the bride-to-be and accepted by the groom. It is a condition of the marriage. During the nikah ceremony, the celebrant or imam carrying out the nikah specifically states what the mehr is and this is accepted or agreed by the groom in front of the witnesses and recorded in the marriage certificate. The mehr becomes the absolute property of the bride. It can be paid at the time or deferred, and even this is then recorded in the marriage certificate.
The mehr amount remains and is considered a debt upon the husband (or even on his family if they were the ones who contracted this), until either (a) it is fulfilled, or (b) his wife, of her own free will, chooses to forgive it or a part of it.
Claims can arise when the wife seeks to pursue financial claims which do not arise from the matrimonial property between parties but which are in fact based on contract arising from haq mehr under Sharia law marriages. Such cases can arise both pre-divorce and post-divorce. This is now developing from written haq mehr contracts which form part of the marriage certificates or “Nikah Nama” documents, into verbal or oral contracts which the courts are asked to enforce following evidence being led.
The Nikah Nama distinguishes between two types of mehr (spelt “Mahar” in the copy Nikah Nama). Mehr Moajjal means paid at the time, and Mehr Mowajjal means deferred. Mehr is an obligatory part of the marriage contract and becomes the exclusive property of the wife on the marriage; she is free to dispose of it however she wishes, including, if she wants, to return it to the husband. Often the mehr is wrongly referred to as being similar to a pre-nuptial agreement, or worse still, called “the bride price”. Such descriptions are unhelpful and entirely incorrect.
In a recent case in London County Court a woman took her ex-husband and his parents to court seeking payment of her haq mehr. The newspapers referred to this as “bride price” payments. They show a complete lack of cultural understanding. I would disagree and distinguish between the two. Taking the second one first, haq mehr is never used to determine the worth or price of the bride. Its function is not to put a financial value on the bride. It also has a completely differently purpose to what is known as “dowry”. Mehr is a compulsory element of the Islamic marriage, which would be considered invalid if mehr had not been included or mentioned. Under Sharia law, the wife has the right to ask for her full mehr at any time – at the time of the wedding, at any time during the marriage, or on its dissolution.
Once this is understood, it is clear that these are very different to pre-nuptial agreements, which relate to assets parties had accumulated before the marriage, are entered into before marriage and set out what is to happen to the parties’ assets and income in the event that parties divorce or separate or indeed on the death of either party. In the event that the husband does not pay mehr as agreed, and if the wife has not voluntarily agreed to waive this, or return it back to her husband, she can raise civil proceedings for breach of contract to get what was promised to her from her husband. This is a separate contractual agreement which can be enforced as such.
UK courts have been involved in such cases for some time: for example, Shanaz v Rizwan  2 All ER 993; Uddin v Choudhury  EWCA Civ 1205. In these cases British courts gave effect to mehr contracts when breached. In the first case, the parties had married in India in 1955 and agreed a deferred mehr in a written marriage contract. The husband divorced the wife in 1959 and the wife successfully raised an action in England where both parties lived. She sought recovery of £1,400 as the sterling equivalent of the deferred mehr, which the court found her to be entitled to. In the second case, the court also held that the arrangements set out for haq mehr did allow for a legally enforceable contract between the parties distinct from and in addition to the financial claims arising from matrimonial property. Under Sharia law, the gifts and arrangements were absolute and not returnable or deductible.
Until now, the UK courts have dealt only with cases involving written mehr contracts. A case in England is the first to be heard involving an alleged oral contract. The London County Court is now dealing with the case of Nazma Quraysha Brishty, who has taken her ex-husband, her former mother-in-law and former father-in-law, Maksudul, Shahinur and Izaharul Halder, to court to demand the full payment of her mehr, which she says is worth approximately £55,000.
In this case the couple had a mutually agreed, arranged marriage in England in January 2017. They separated later that year and were divorced in 2018. Brishty’s former in-laws paid her £5,005 – the mehr written in their Islamic certificate of marriage – but refused to pay the remaining sum that Brishty says her former father-in-law promised verbally, in the presence of her father and another witness, before and at the wedding ceremony. Her ex-husband and his family deny there was an oral contract. It will be interesting to see how the court deals with this issue.
There is likely to be an increase in such cases in Scotland whereby the courts are asked not only to consider parties’ financial claims arising from matrimonial property acquired by parties during the marriage, but in addition and separately, considering contractual claims arising from the haq mehr element of the marriage. Such cases are already forcing legal practitioners to think in a different way to ensure they consider carefully what their clients are entitled to. Certainly, we will see more and more cases at the doorsteps of civil and family practitioners, who need to be aware when advising clients and negotiating separation agreements on their behalf. Care needs to be taken when drafting clauses in full and final settlement of financial claims in respect of the marriage to ensure that their clients are not inadvertently foregoing or prejudicing their right to seek this additional element – at least as against their husband. The value of such claims can range from very little to something very significant.
If the Scottish courts grant orders in these cases, it will enable women to demand the payment of their mehr in full as is required by Sharia law. The ruling would be applicable not only to Muslim women but to women from all cultural backgrounds where the tradition of giving mehr is practised, regardless of their immigration status in the UK and whether the contract was in oral or written form. Family lawyers will need to ask careful questions of their clients and scrutinise more thoroughly the marriage certificates and contractual obligations between the parties to ensure such claims are not missed.
It will be very interesting to see how this area of law develops and how the courts deal with such cases where they arise, whether pre-divorce where they might be capable of being dealt with together with other financial claims within the marriage, or post-divorce where they are considered under contract law.
These cases also represent a shift in the mindset and the growing confidence of women from the Asian continent to assert their rights and seek to pursue their claims. I expect to see more such cases being brought forward and a growing trend of family law cases where such issues are raised. It is therefore useful for practitioners to be aware of these developments and remain aware of the nuances and implications so we can advise our clients fully.
Khalda Wali is an accredited specialist in family law and principal solicitor at LKW Solicitors Ltd
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