A v L [2010] EWHC 460 (Fam)

[2010] EWHC 460 (Fam)

Case No FD08D02126

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 11/03/2010

Before

SIR MARK POTTER

THE PRESIDENT OF THE FAMILY DIVISION

Between

APetitioner

LRespondent

Charles Howard QC (instructed by Bishop & Sewell LLP)) for Applicant

The Respondent appeared in person, accompanied by Mr. Tawfick, McKenzie Friend. for in person

Hearing Hearing dates: 17, 18, 26 November, 14 and 21 December 2009 and 14 January 2010

Judgment

SIR MARK POTTER, THE PRESIDENT OF THE FAMILY DIVISION

[1]This judgment follows the hearing of the petition of the petitioner wife (“the wife”) for dissolution of her marriage to the respondent husband (“the husband”) on the grounds of the husband’s unreasonable conduct throughout their long marriage, but in particular during the last 10 years or so leading up to the departure of the wife from the matrimonial home in September 2006.

[2]On the hearing of the petition as a defended cause, the wife has been represented by Mr Charles Howard QC and the husband by Mr Mohammed Tawfick, who is a personal friend of the husband who has assisted him in earlier stages of the litigation. Mr Tawfick has had considerable legal training and experience. He is a qualified Egyptian lawyer (see his statement dated 2 October 2009). He appeared in the role of McKenzie Friend at the outset of the hearing and made an application on behalf of the husband that he be permitted to appear as the husband’s advocate and for that purpose to be granted the right of audience in the proceedings. I granted that application.

The application to adjourn

[3]In that role, the first application made by Mr Tawfick was that the hearing of the divorce be adjourned and that the Court should order release of the sum of £200,000 to be paid to the husband on account of his past and future costs from Bank of Ireland account Ref. 0-xxxxx, a frozen joint account containing the rapidly diminishing proceeds of sale of the former matrimonial home, alternatively such lesser sum as might be appropriate to enable the husband to put solicitors in funds and to conduct the adjourned hearing (and subsequent disposal of the ancillary relief proceedings) with the benefit of leading and junior counsel.

[4]I refused that application in the light of the unusual circumstances and extended history of the case and it is right that I should first deal with my reasons for doing so by reference to the background history.

The background

[5]This is a case in which, since the departure of the wife from the matrimonial home and her obtaining of a freezing order in respect of the husband’s assets in the United Kingdom, he has fought an extended and determined battle to avoid the jurisdiction of the English Court and to postpone and minimise the determination of any liability on his part to make financial provision for the wife.

[6]The background is that, although the parties are naturalised British citizens, they are both Libyan by birth. However, in 1980 the parties left Libya with the seven children of their marriage (three sons and four daughters) and came to England in order to settle here. They were in fear of their safety in the light of the husband’s political activities. Neither has ever returned to Libya.

[7]Shortly after their arrival in England, in the light of further perceived threats to their safety, they felt unsafe and moved to Cairo where they lived for ten years until 1990. However, in 1990 they, together with five of their children came to England and sought and were granted political asylum, and subsequently indefinite leave to remain. In 1993 they bought a very substantial family home with seven bedrooms at 33 A Avenue in North London and the husband established a property development company in England which dealt in London property and operates to this day. They both applied for British citizenship, the wife obtaining it in the year 2000 and the husband in 2003. By that time the husband was spending much of his time in Egypt and the centre of the family’s interest moved from London to Cairo, in the sense that the majority of their time was spent there. However, they maintained the residence at 33 A Avenue where they would stay whenever they were in London, as they frequently were. In July 2006 the parties flew back to England from Egypt to 33 A Avenue, the wife being in need of medical treatment. At that time, the marriage had become unhappy, largely because of the husband’s relationship with a younger woman (see further below). The marriage then broke down entirely following the discovery by the wife of a letter to the husband from his lawyer giving him advice in relation to divorce. She resolved not to return with the husband to Cairo but to remain in England and bring divorce proceedings here.

The wife’s first petition

[8]On 18 October 2006 the wife filed for divorce (“the first petition”) and left 33 A Avenue. Thereafter, with no home of her own to go to, she led a somewhat peripatetic existence staying with various members of her family, in North London, in Belfast, and in Egypt.

[9]Although, at that time, the husband did not start divorce proceedings elsewhere, he challenged the jurisdiction of the English Court to hear the wife’s petition on the grounds that she had not been continuously present in England for long enough before the presentation of her petition to have acquired the necessary habitual residence upon which she relied as founding the Court’s jurisdiction.

[10]Stephen Bellamy QC sitting as a Deputy Judge of the High Court, heard the proceedings on 15-19 November and 13 December 2007 and reserved judgment which was handed down on 25 April 2008. He found in favour of the husband.

[11]In the interval between the hearing and the judgment, on 31 January 2008, the husband commenced divorce proceedings in the Heliopolis Family Court in North Cairo, seeking a unilateral talaq. The wife was not served with notice of these proceedings, nor was she aware of them. They were subsequently struck out by the Egyptian Court and, in April 2008, the husband recommenced divorce proceedings in Egypt in the Nasr City Family Court (case No. 353/2008) again without the knowledge of the wife (see paras 2 and 3 of the judgment of Stephen Bellamy QC).

[12]In the course of his judgment Stephen Bellamy QC commented upon the failure of the wife to rely upon an assertion of domicile on her part as forming a proper basis for the jurisdiction of the Court. The wife promptly filed her second petition on 6 May 2008, alleging unreasonable behaviour and relying inter alia upon her domicile in England.

The wife’s second petition

[13]The husband immediately made an application that the second petition and all applications ancillary thereto be withdrawn by the wife on the grounds that the Court did not have jurisdiction to hear the petition and, in the alternative, he applied for a stay on the grounds he had himself commenced proceedings for divorce in Egypt.

[14]On 21 July 2008, I made a Hemain order (see paragraph 11 of my order of that date) that the husband should forthwith take all steps necessary to adjourn any divorce proceedings in Egypt; that he be forbidden from taking any further steps to progress the Nasr Family Court proceedings or any other proceedings designed to bring the marriage to an end; and that he be forbidden from commencing any further such proceedings until this Court had disposed of his answer to the wife’s second petition and his application for its stay.

[15]By my judgment dated 21 July 2009, following a 3-day hearing, I determined that application against the husband, holding that the wife’s domicile was established and refusing a stay of proceedings. The grounds for my refusal were that it was the clear evidence of Mr Edge, the expert in the Egyptian and Islamic law jointly instructed by the parties, that the Egyptian Courts did not enjoy and/or would decline to exercise jurisdiction and that, in any event, grounds of fairness and convenience dictated that the matter should proceed in England.

[16]As at that date, so far as I was aware, the husband was complying with my order of 21 July 2008 in relation to the Egyptian proceedings which were in a state of suspense: see paras 62 – 65 of my judgment of 21 July 2009.

[17]At the handing down of my judgment on that date, the husband (who had hitherto been represented by Goodwins Solicitors, who were still on the record) was accompanied by Mr Tawfick who spoke on his behalf; he applied for permission to appeal which I refused, no grounds having been demonstrated, nor any argument raised, to justify such permission. He also applied without notice for a further release of funds from the joint account. This application was opposed by Mr Howard for the wife on the grounds that there was no affidavit as to the husband’s financial position to substantiate his absence of funds or his inability to raise them.

[18]In the event, I ordered release of the sum of £35,000 paid into Court by the husband on a previous occasion upon the basis that such sum should be used solely for the purposes of(i) obtaining advice as to whether to make an application to the Court to secure the further release of funds and, if so advised, to make such an application and

(ii) obtaining advice as to the husband’s then declared intention to continue to defend the wife’s petition.

[19]I also directed that, in the event that the husband confirmed his intention to defend the petition by 28 July 2009, the petitioner should file and serve the witness statements on which she intended to rely by 21 August 2009 and the husband should file and serve all statements on which he intended to rely within 21 days thereafter. I also directed that the case be listed for trial on a date to be fixed forthwith, but not before 21 September 2009, with a time estimate of two days.

[20]At the same time I directed that, regardless of whether the cause proceeded to trial or was undefended, the parties should exchange Forms E by 21 August 2009, the first appointment on the wife’s petition for ancillary relief (dated 6 May 2008) being listed to be heard directly after the trial of the wife’s divorce petition if appropriate. The hearing date was subsequently fixed for 17 November 2009.

[21]Thereafter there was some delay in the release of the £35,000 from the Court by reason of the refusal of the Court funds office to pay out a capital sum without a provision in the order making clear whether interest should be added. The husband, assisted by Mr Tawfick, obtained an order correcting the position on 20 August 2009 and, on 25 August the husband issued an application for a stay of the divorce proceedings until the sum was paid.

[22]In the event, the money was quickly paid, but the husband apparently took no further steps in the proceedings until 2 October 2009 when Charles J heard an application by the wife to debar the husband from defending the divorce proceedings listed for hearing on 17 November on the grounds that he had not complied with my order to serve a statement in reply to the petitioner’s witness statement in the divorce proceedings or to exchange Forms E by 21 August 2009. At the same time, Charles J heard an application on behalf of the husband, assisted by Mr Tawfick, to whom Charles J also granted rights of audience as an advocate on behalf of the husband for the purposes of that hearing.

[23]That application was dated and had been filed on the same day (2 October 2009) as the appointment before Charles J. No prior notice had been given to the wife or her advisors. It sought an order(i) that a right of audience be granted to Mr Tawfick and

(ii) that the freezing order be varied to allow the sum of £200,000 to be paid to the respondent out of the Bank of Ireland account on account of his costs required by the husband’s solicitors (now said to be Ambrose Applebe, although they were not yet on the record), to represent him in relation to his appeal against my July decision of which the wife’s solicitors had heard nothing, save for a notice from the Civil Appeals Office that the application for permission to appeal my judgment of 21 July 2009 and for a stay of execution was to be heard on 14 October 2009.

[24]As to the husband’s non-compliance with the directions previously given Charles J held that the delay in payment of the £35,000 lodged in Court represented absolutely no reason why compliance with my order had not yet taken place. Charles J therefore refused the application for a stay on that ground and made an “unless” order on the wife’s application. He went on to say that the last minute applications made that morning came “perilously close” to an abuse of process by the husband. Referring to the history he observed:

“Everything seems to come at the last second, there is a consistent failure to apply and to take proper notice of and a sensible approach to the orders made by the Court and, in particular the most recent order made by the President.”

[25]As to the husband’s application for variation of the freezing order, Charles J observed as follows:

“It is completely obvious to the husband and to his friend [Mr Tawfick], who is qualified as a lawyer, that proper notice should be given of such applications and that they should be supported by evidence. The evidence in support of the application on a quick read through does not contain evidence of the husband’s means which would be a vital factor in considering whether or not there should be a variation of the freezing order.”

Later, in paragraph 7 of his judgment, Charles J commented that there was an “underlying point plainly in dispute between the parties relating to the overall assets of the husband and wife” and stated:

“I have sought to make it clear to the husband through his friend, that it is likely that, absent evidence demonstrating his lack of resources apart from the frozen monies, his task in obtaining a variation of the freezing order will not be an easy one.”

[26]It appears from the judgment of Charles J that the application of the husband for Mr Tawfick to represent him on that application widened into an application by the husband for permission for Mr Tawfick to represent the husband as his Advocate in the proceedings generally. The Judge directed that such application should be dealt with as a preliminary issue at the hearing of the divorce which remained fixed for trial on 17/18 November (with an estimate of two days).

[27]So far as the husband’s representation was concerned, on 9 October 2009 the wife’s solicitors then became aware that he had consulted Dawson Cornwell to assist him. Having written to Dawson Cornwell on 15 October and received no reply, they wrote to the husband on 21 October to ascertain whether he intended to instruct Dawson Cornwell to represent him at the hearing on 17/18 November. Having received no reply from the husband, on 4 November they received a letter from Dawson Cornwell which stated that they had been reconsulted by the husband in relation only to the appeal (in respect of which an application for permission had already been lodged) and that, on first consideration, Thorpe LJ had given an opportunity for the husband to instruct leading counsel to lodge a skeleton argument, the permission to appeal application being thereafter considered as a paper exercise (see further below). No stay had been granted. Dawson Cornwell stated that they had a conference with leading and junior counsel fixed for 6 November to deal with the matters to which the earlier release of the sum of £35,000 from Court were limited. Dawson Cornwell invited agreement to an adjournment of the hearing on 17/18 November. The wife’s solicitors did not agree.

[28]On 3 November, the wife’s solicitors had written to the husband reminding him that the release to him of the sum of £35,000 had been for the purpose of obtaining advice concerning his application for release of funds and the making of such application and for advice as to his intention to defend the petition. On 5 November 2009 Dawson Cornwall served on the wife’s solicitors notice of change of solicitor, but limited to the ancillary relief proceedings and, on 6 November 2009, they wrote stating that they were anxious to put some “constructive suggestions” to the wife’s solicitors. However, on 11 November 2009 they wrote to say that they had been “dis-instructed”, and the husband had now instructed Messrs Ambrose Applebe.

[29]On 12 November 2009 the husband was sent trial bundles and invited to agree that there should be an undefended divorce in order to save costs and the stress and anxiety being caused to both parties.

[30]On 13 November 2009 Ambrose Applebe confirmed that they had been approached by the husband “to provide him with a second opinion in relation to his proposed appeal”, but it was made clear that they too were not instructed to attend the hearing of the divorce petition on 17/18 November. That is where the matter stood when the matter came before me on 17 November for hearing of the wife’s petition.

Refusal of the application to adjourn

[31]As directed by Charles J on 2 October 2009, Mr Tawfick duly applied on the husband’s behalf for permission for Mr Tawfick to act as his advocate, which application I granted. Mr Tawfick then, without any previous notice having been served, applied for the adjournment of the hearing and a further payment out of the Bank of Ireland account to the husband in order to enable him to obtain new legal representation upon such adjourned hearing. He did not suggest or argue that the husband’s outstanding application to the Court of Appeal constituted a reason for the adjournment.

[32][At this point, it is pertinent to note that the application for permission to appeal my July decision was subsequently heard and dismissed by Thorpe LJ on 30 December 2009, (at which date these proceedings stood adjourned part-heard), the application being made orally by Mr Tawfick, to whom Thorpe LJ granted a right of audience for that purpose.]

[33]I refused the application to adjourn the hearing of the wife’s petition for the following reasons. First, I was satisfied that the husband had no good grounds for appeal in relation to my decision of 21 July 2009 and no stay had been obtained. Second, the resolution of the divorce proceedings between the parties following the break-up of their marriage had been unduly delayed since the wife presented her first petition over three years earlier, such delay creating considerable distress between the parties and exacerbating the family bitterness which already existed.

[34]Third, the marriage had plainly broken down irretrievably in the sense that both parties were seeking a divorce, the wife here and the husband in Egypt, in proceedings in which, upon the previous evidence of the parties’ jointly instructed expert, the Egyptian Courts lacked jurisdiction and any further attempt by the husband to advance those proceedings was prohibited by my Hemain order of 21 July 2008 (see paragraph 13 above), which order had not been appealed. It was therefore in the interests of both parties, and in particular the wife, the stress upon whom was evident, that the divorce proceedings be dealt with as swiftly as possible and in this respect the directions for preparation and trial of the available divorce petition on 17 November had been fully complied with.

[35]Fourth, the history of the proceedings had been one of conflict and delays in which the husband has been represented by a series of solicitors (five in all) the instruction and reinstruction of whom has contributed to the progressively escalating costs of such proceedings and consequent diminution of the principal asset of the parties (i.e. the sum in the Bank of Ireland account) otherwise available to the wife in the jurisdiction in respect of her ancillary relief claims should she prove entitled to the divorce which she seeks. The history also included ostensible and repeated statements by the husband that he recognises the wife’s right to proper long term provision for her maintenance on the one hand, while on the other hand he has resisted resolution of the matter within this jurisdiction, preferring to rely upon jurisdictional arguments to ensure that the matter is tried in Egypt where the maintenance rights of the wife are of a most restricted kind: see paragraphs 68 and 69 of my judgment dated 25 June 2009.

[36]Fifth, at the time of making the original directions for the hearing of the decree, upon the basis that a swift resolution was required (see paragraph 19 above), it had been made clear to the husband that, if he wished to secure the release of funds to enable him to contest the divorce, he should do so forthwith upon notice, supported by proper evidence, given the opposition of the wife. He had had £35,000 released to him for that very purpose which became available to him by end August 2009 and, having failed to use it for that purpose by 2 October 2009, was again put clearly upon notice by Charles J of the need for speedy process, being informed that the last minute applications made before Charles J bordered upon abuse of process. Nonetheless he had failed to deal swiftly with the matters for which the monies had been released, preferring to spend time and money on an application to appeal my judgment on the preliminary issue in relation to which he had failed to advance matters or to obtain a stay from the Court of Appeal.

[37]Sixth, the husband had given no prior notification of his application for an adjournment of the hearing on 17 November or for further funds, despite the fact that the wife’s solicitors had made clear their position at all times that they required the divorce hearing to proceed on 17 November and despite Charles J’s previous strictures about last minute applications. Thus, so far as the wife was concerned, she arrived at Court for a hearing, on the understanding that the husband was not instructing solicitors or counsel for the purposes of the hearing, the only outstanding application being the application of the husband previously made to Charles J that Mr Tawfick be permitted to act as his advocate in the proceedings generally, which application Charles J had directed should be made to me on the hearing date.

[38]Seventh, I was satisfied that Mr Tawfick had a detailed understanding of the case, having previously settled affidavits on behalf of the husband, including his sworn statement in the divorce proceedings, and that he was familiar with the issues in the suit. Accordingly, I considered that, without undue disadvantage to the husband, the matter could and should proceed as the hearing of the petition.

[39]Having so indicated, when Mr Tawfick sought to say that he was not ready immediately to proceed with the cross-examination of the wife, I pointed out that the wife’s case was of a straightforward nature and indicated that I would ask Mr Howard to present the evidence of the wife and then grant an adjournment until 3.00pm in the afternoon to enable Mr Tawfick to prepare cross-examination. In the event, Mr Tawfick was well able to commence his cross-examination at that time and, at the end of the afternoon session, the matter was adjourned until 2.00pm on the following day, thus affording Mr Tawfick the further opportunity of conferring with his client and preparing his cross-examination. In the event, Mr Tawfick finished his cross-examination and the wife completed her evidence by the end of the afternoon on 18 November. There was then discussion as to the availability of the parties’ representatives, and the case had to be adjourned to 14 December 2009 for the taking of the husband’s evidence in the light of the imminent and (as he asserted) unavoidable departure of Mr Tawfick to Egypt in connection with important business matters. No mention was made at that time of the destination or intentions of the husband, albeit, as will be apparent from what follows, he was due to appear in the Nasr City Family Court four days later (on 22 November 2009) in his pursuit of Egyptian divorce proceedings.

The husband’s application on 14 December 2009

[40]On 7 December 2009, seven days before the adjourned hearing was due to take place, Mr Hammed Mohamed Mahmud, an Egyptian advocate acting on behalf of the husband wrote to the wife’s solicitors informing them, and enclosing a copy (with a notarised translation), of a judgment of the Nasr Family court dated 22 November 2009 in the husband’s Egyptian divorce proceedings No 353/2008 (see paragraph 11 above). These proceedings were of course the subject of the Hemain order granted by me on 21 July 2008 (see paragraphs 14 and 16 above). The letter stated:

“We would like to inform you and your client of the A/M Rule in order to inform her that Mr Lias is ready to give her all her legitimate financial rights according to the Islamic Shariaa and the competent Egyptian law whenever she is willing to (sic) before the Family Affairs Egyptian Courts which made this adjudication requiring all legitimate rights which our client is ready to provide.”

[41]By notice issued on Friday 10 December 2009, the husband issued an application served late on that day that the adjourned hearing date on Tuesday 14 December be vacated on the grounds that the Egyptian Court had made an order that the husband had been divorced since 18 January 2008. A copy of the judgment was attached, together with the letter from Mr Mahmud.

[42]On 14 December 2009, Mr Tawfick provided me with a further translation of the Egyptian judgment on the basis that the notarised translation earlier served in support of his application was not entirely accurate. When he sought to do so, I was initially unwilling to entertain it because I was concerned that the differences might be material to proof of the facts relevant to recognition and it appeared to me that the notarised translation first supplied was the official translation, obtained as it was from the Notarisation Office of the Egyptian Ministry of Justice. However, on Mr Tawfick’s further request, I then admitted the further translation debene esse,without objection from Mr Howard. Having studied the further translation, it does not appear to me (nor did Mr Howard submit) that the differences from the notarised translation are significant so far as the material facts are concerned; indeed, I have derived assistance from it in understanding certain phrases in the notarised version which might otherwise have lacked clarity, not least in the wording of the verdict which, as set out in the further translation, reads:

“In the Premises The Court hereby pronounces the Confirmation of Divorce that happened on 18/01/2008 between the petitioner L and the Respondent A, and hereby orders the Respondent to pay the legal costs of fees amounting to seventy five Egyptian Pounds.”

[43]The ‘Premises’ referred to in the verdict, and which constituted the body of the judgment, refer to the Egyptian Court having heard the pleadings, reviewed the documentation and having heard the prosecutor’s opinion. It states that, based on such documentation, it is clear that the husband filed his case by endorsing the court file on 3 March 2008 and that he had served the case on the respondent requesting “that the appellant’s divorce from the respondent be notarized and committing the respondent to pay the legal fees and expenses.” It continued:

“The appellant’s request was founded on the basis of his statement that she is his wife and their marriage was consummated after their marriage was solemnised in Libya. The appellant divorced her in Egypt, this divorce was not documented. They currently reside in the Arab Republic of Egypt. The respondent travels abroad frequently. The appellant filed for the divorce notarisation on the previously said basis.”

(emphasis added)

[44]Having recited the lodging of various documents, and having referred to the submissions of two experts’ reports and the Prosecutor’s memorandum of opinion it is stated that:

“The appellant attended in person and stated that he divorced the respondent on 18 January 2008 by saying “you are divorced” through telephone and he did not return back to her until date. He also refused reconciliation and he requested the verdict.”

It is to be noted that in the further translation the words “he did not return back to her until date” are translated as “he has not revoked the divorce to date”. He also refused reconciliation and he requested the verdict.”

[45]In relation to the Court’s jurisdiction, the judgment quotes Article 29 of the Egyptian Pleadings Law [Code of Procedure] to the effect that the Egyptian Courts “shall have the jurisdiction to hear cases filed against the foreigner who has a domicile or residence in Egypt”. It also quotes Article 30 which provides that the Egyptian Courts “shall hear the law suits filed against the foreigner who does not have a domicile or residence in Egypt in the following cases: item 9. If one of the respondents has a domicile or residence inside the Republic”. It then states :

“Based on the above and as proved by the instruments presented, both the appellant and the respondent have a residence in Egypt. Their places of residence are within this Court’s area of jurisdiction, thus jurisdiction is established for this Court.”

(emphasis added) The grounds go on to state that, by reason of the provisions of Article 13 of the Egyptian Civil Law and Article 28 of Law no 10/1984, and on the basis that the documentation proved the husband was a Libyan citizen at the time of filing the suit, Libyan law was the applicable law. It also recited Article 28 of Law No 10/1984 which provides that: “In all cases, divorce cannot be proven except through the competent Court verdict” (italics added) (The italicised words appear in the further translation as “by a judgment pronounced by a competent court”)

[46]The grounds continue:

“Based on the above, and as the Court believes that the appellant is the husband of the respondent, by virtue of the legal contract submitted among papers. It is proven to the Court upon interviewing the appellant that he is a rational, adult and possessing his own freewill. The Court also decided that he has the right to divorce his wife. Moreover, the appellant attended and asserted that he divorced the respondent on 18 January 2008 by saying “You are divorced”

. This was the first time to divorce and was through telephone. This divorce was not previously documented and he did not return back to her until date. Consequently, as per the Libyan Personal Affairs Law concerning divorce, the appellant filed his lawsuit depending on valid law and physical [i.e. factual] grounds. The Court responded by notarising his divorce from the [wife] as stated … hereafter … BASED ON THE PRECEDING GROUNDS” The verdict then followed as quoted at paragraph 42 above. The Court responded by notarising his divorce from the [wife] as stated … hereafter … BASED ON THE PRECEDING GROUNDS”

The Court responded by notarising his divorce from the [wife] as stated … hereafter …

[47]At this point, I observe that the citations of Egyptian law relevant to the jurisdiction of the Egyptian Court are consistent with and confirm the position in law as stated by Mr Edge, then the expert jointly instructed by the parties, at the trial of the husband’s application to dismiss these proceedings for want of jurisdiction in the English Court. In my judgment of 21 July 2009, I summarised that position as follows:

“56 Whereas it is open to the husband as a non-Egyptian national, if present resident and domiciled in Egypt, to commence an action in the Egyptian Courts by issue of the appropriate court proceedings, if the defendant (i.e. the wife) is a non-Egyptian then the Egyptian court will only assume jurisdiction in certain limited instances or categories provided for in Article 29 and 30 of the Procedure Code. Article 29 of the Procedure Code provides that the Egyptian Court has jurisdiction over a foreign defendant who has a domicile, or an official or certified place of residence, in Egypt. The wife does not. … 58. Reverting to Article 29, the relevant issue in this case in respect of proceedings started by the husband as a non-Egyptian, would be whether or not the wife would be considered as domiciled or having a place of residence in Egypt. Mr Edge states that, as the wife has left Egypt, apparently never intending to return, she would not be considered to be domiciled or resident in Egypt under Egyptian law. Thus the Egyptian Court would have no foundation to exercise jurisdiction based upon Article 29.”

[48]It is apparent that the reason the Egyptian Court assumed jurisdiction on 22 November 2010 contrary to the expectation of Mr Edge, was its finding that the wife did have an official certified place of residence in Egypt: see the inset quotation at paragraph 45 above.

[49]The application made by Mr Tawfick met with vigorous opposition from Mr Howard for the wife on the grounds that it would involve recognition by the Court of the Egyptian judgment as a valid overseas divorce in respect of which it was incumbent on the husband to establish the various matters set out in ss 45 and 46 of the Family Law Act 1986. Mr Howard objected that the application was made with insufficient notice and involved the husband relying on matters in relation to which he had acted in contempt of court by pursuing his divorce in breach of the order of 21 July 2008, from which he had never appealed and in reliance on which the wife and this Court had since proceeded: see paragraph 64 of my judgment dated 25 June 2009. He also asserted that it was apparent from the face of the judgment that(a) the husband had misinformed the Court in certain respects

(b) that he had made no attempt to inform the Court of the order of the English Court restraining him from proceeding with divorce proceedings in Egypt. Mr Howard protested that the wife, who was not represented, and had no lawyers acting for her in the Egyptian divorce proceedings, had been given no opportunity to consider her position in relation to a hearing of which she had no knowledge and which dealt with matters which she contested. In particular, he stated that the wife challenged the very basis upon which the husband’s Egyptian petition was founded in that she denied that the alleged telephone talaq had ever taken place. [In that connection it was clear, as was not disputed by the husband, that the talaq relied on had at no stage of these proceedings received mention by the husband or any of his representatives, whether to this Court, to the wife, or to her representatives, who were thus ignorant of it or its alleged pronouncement until receipt on 7 December 2009 of the translated judgment of the Egyptian Court.]

[50]Mr Howard made a number of points as to why, in his submission, the husband was unable to make out the requirements of ss 45 and 46 as to residence and domicile and went on to submit that, even if the Court was satisfied as to those matters, I should exercise my discretion to refuse recognition of the validity of the Egyptian divorce under s.51 of the 1986 Act on the grounds of the wife’s absence of notice or opportunity to take part in the Egyptian proceedings.

[51]For the purposes of resisting the application, despite the shortness of notice, the wife’s solicitors had succeeded in obtaining a further report from Mr Edge, on whose evidence he sought to rely in support of certain of his submissions. Mr Tawfick made clear that he was disputing the content of Mr Edge’s report. In the event, I have felt able to resolve the question as to whether or not the Court should recognise the judgment of the Egyptian Court as a valid divorce pursuant to the terms of ss 45 and 46, or should exercise my discretion nor to do so under s. 51 of the 1986 Act, by resort to the terms of the Egyptian judgment itself and the history and circumstances of the case, without reliance upon the further evidence from Mr Edge.

[52]Having heard the parties in relation to the question of recognition for the purposes of the husband’s application to vacate the hearing, I indicated my view that the Egyptian judgment was one which should not be recognised by the English Court pursuant to the provisions of the 1986 Act, stating that I would give detailed reasons in my judgment following completion of evidence and final submissions. In the event, I received further helpful submissions on the question from Mr Tawfick in reliance on the case of Quazi v Quazi

[1980] AC 744

in the course of his final address. Having fully reconsidered the question on the basis of the evidence made available to me, I remain of the view that the Court should not recognise the judgment of the Egyptian Court, but should, if satisfied that the wife’s grounds for divorce are established, itself proceed to pronounce a decree. My reasons are as follows.

[53]The provisions of the Family Law Act 1986 Part II relevant to the application of the respondent are as follows:

[54]S.45(1) provides that:

“Subject to … sections 51 and 52 of this Act, the validity of a divorce … obtained in a country outside the British Islands (in this part referred to as an overseas divorce …) shall be recognised in the United Kingdom if, and only if, it is entitled to recognition – (a) By virtue of Sections 46 to 49 of this Act…”

[55]S.46(1) provides that:

“The validity of an overseas divorce … obtained by means of proceedings shall be recognised if – (a) The divorce … is effective under the law of the country in which it was obtained; and (b) At the relevant date either party to the marriage (i) was habitually resident in the country in which the divorce … was obtained; or (ii) was domiciled in that country; or (iii) was a national of that country. (italics added)” (a) The divorce … is effective under the law of the country in which it was obtained; and (b) At the relevant date either party to the marriage (i) was habitually resident in the country in which the divorce … was obtained; or (ii) was domiciled in that country; or (iii) was a national of that country. (italics added)”

[56]S.46(2) provides that: “The validity of an overseas divorce … obtained otherwise than by means of proceedings shall be recognised if-(a) the divorce … is effective under the law of the country in which it was obtained;

(b) at the relevant date – (i) each party to the marriage was domiciled in that country; or (ii) either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce … is recognised as valid; and

(c) neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date.” (italics added) (a) the divorce … is effective under the law of the country in which it was obtained; (b) at the relevant date – (i) each party to the marriage was domiciled in that country; or (ii) either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce … is recognised as valid; and (c) neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date.” (italics added)

[57]S.46(3) provides that “the relevant date” in S.46(2)(b) means: “(a) in the case of an overseas divorce … obtained by means of proceedings, the date of the commencement of the proceedings; b) in the case of an overseas divorce … obtained otherwise by means of proceedings, the date on which it was obtained”. b) in the case of an overseas divorce … obtained otherwise by means of proceedings, the date on which it was obtained”.

[58]S.48. (Proof of facts relevant to recognition) provides as follows: “(1) For the purposes of deciding whether an overseas divorce … obtained by means of proceedings be entitled to recognition by virtue of section 46 and 47 of this Act, any finding of fact made (whether expressly or by implication) in the proceedings and on the basis of which jurisdiction was assumed in the proceedings shall –(a) if both parties to the marriage took part in the proceedings, be conclusive evidence of the fact found; and

(b) in any other case, be sufficient evidence of that fact unless the contrary is shown. (2) In this section “finding of fact” includes a finding that either party to the marriage – (a) was habitually resident in the country in which the divorce … was obtained; or (b) was under the law of that country domiciled there; or

(c) was a national of that country. (3) For the purposes of subsection (1)(a) above, a party to the marriage who has appeared in judicial proceedings shall be treated as having taken part in them.” (a) if both parties to the marriage took part in the proceedings, be conclusive evidence of the fact found; and (b) in any other case, be sufficient evidence of that fact unless the contrary is shown. (a) was habitually resident in the country in which the divorce … was obtained; or (b) was under the law of that country domiciled there; or (c) was a national of that country.

[59]S.51. (Refusal of recognition) provides:

“(3) Subject to section 52 of this Act [which is not relevant in this case] recognition by virtue of section 45 of this Act for the validity of an overseas divorce… may be refused if – (a) In the case of a divorce … obtained by means of proceedings, it was obtained - (i) without such steps having been taken for giving notice of the proceedings to a party to the marriage as, having regards to the nature of the proceedings and all the circumstances, should reasonably have been taken; (ii) without a party to the marriage having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as having regard to those matters he should have reasonably have been given; or (b) in the case of a divorce … otherwise than by means of proceedings – (i) there is no official document certifying that the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; or (ii) where either party to the marriage was domiciled in another country at the relevant date, there is no official document certifying that the divorce … is recognised as valid under the law of that country; or (c) in either case, recognition of the divorce … would be manifestly contrary to public policy.” (a) In the case of a divorce … obtained by means of proceedings, it was obtained - (i) without such steps having been taken for giving notice of the proceedings to a party to the marriage as, having regards to the nature of the proceedings and all the circumstances, should reasonably have been taken; (ii) without a party to the marriage having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as having regard to those matters he should have reasonably have been given; or (b) in the case of a divorce … otherwise than by means of proceedings – (i) there is no official document certifying that the divorce, annulment or legal separation is effective under the law of the country in which it was obtained; or (ii) where either party to the marriage was domiciled in another country at the relevant date, there is no official document certifying that the divorce … is recognised as valid under the law of that country; or (c) in either case, recognition of the divorce … would be manifestly contrary to public policy.”

[60]Part II of the 1986 Act re-enacted earlier provisions contained in the Recognition of Divorces and Legal Separations Act 1971 with a number of modifications. In doing so, it largely gave effect to the recommendation of the Law Commission report “Recognition of Foreign Nullity Decrees and Related Matters (Law Com. No. 137, Cmnd. 9341). However, in s.46 a distinction is drawn between overseas divorces obtained by means of proceedings (which means judicial or other proceedings: s.46(1) and s.54(1))and overseas divorces obtained otherwise than by means of proceedings (s.46(2)). It is clear from s.45 that a divorce obtained outside the British Islands will only be recognised if it is entitled to recognition under ss 46-49 or by virtue of any other enactment. The common law rules for recognition of divorce which survived the 1971 Act are thus effectively abrogated. However, the rule that the English Courts will not recognise a “bare” talaq pronounced abroad as constituting a divorce by means of proceedings survives (see Chaudhary v Chaudhary

[1984] 3 All ER 1017

). In this connection, as the case of Quazi makes clear, while the pronouncing by a spouse of a “bare” talaq is insufficient to qualify as a divorce obtained by means of proceedings, it will be recognised as such provided that the party seeking recognition is able to demonstrate “at least the involvement of some agency (whether lay or religious) of, or recognised by, the state which has a function which is more than simply probative” and amounts to at least “the registering or recording of which has been done”: per Oliver LJ in Chaudhary at 485F and 486C.

[61]So far as refusal of recognition by an English Court is concerned, Rule 83(3) of Dicey, Morris & Collins: The Conflict of Laws (14th ed.)Vol 2 states that an overseas divorce obtained by means of judicial or other proceedings and other wise entitled to recognition:

“may be refused recognition in England on the ground of (a) Want of proper notice of the proceedings to a party to the marriage (s.51(3)(a)(i)) or (b) Want of proper opportunity for such a party to take part in the proceedings (s.51(3)(a)(ii).” (a) Want of proper notice of the proceedings to a party to the marriage (s.51(3)(a)(i)) or (b) Want of proper opportunity for such a party to take part in the proceedings (s.51(3)(a)(ii).”

[62]Rule 83(5) of Dicey makes clear that such an overseas divorce may also be refused recognition in England if its recognition would be manifestly contrary to public policy (s.51(3)(c)).

[63]In relation to divorces obtained in a country outside the European Union by means of judicial or other proceedings, Rule 80(1) of Dicey states that such judgments, “[If] effective under the law of that country will, subject to Rule 83, be recognised in England if at the date of the commencement of the proceedings (s.46(3)(a))(a) Either party to the marriage was habitually resident in the Country in which the divorce … was obtained (s.46(1)(b)(i)); or

(b) either party to the marriage was domiciled in that country (s.46(1)(b)(ii)); or

(c) Either party to the marriage was a national of that country (s.46(1)(b)(iii)); and not otherwise.” (a) Either party to the marriage was habitually resident in the Country in which the divorce … was obtained (s.46(1)(b)(i)); or (b) either party to the marriage was domiciled in that country (s.46(1)(b)(ii)); or (c) Either party to the marriage was a national of that country (s.46(1)(b)(iii)); and not otherwise.”

[64]It is to be noted that if the foreign court makes a finding of fact, whether expressly or by implication, on the basis of which jurisdiction was assumed, including a finding that either spouse was habitually resident or domiciled under the law of the foreign country in, or a national of, the foreign country, that finding is conclusive evidence of the fact provided both spouses took part in the part in the proceedings; in any other case such a finding is conclusive unless the contrary is shown(s.48(1)(b)). If the proceedings are judicial in character, a party who has appeared in the proceedings shall be treated as taking part in them (s.48(3)).

[65]It is also to be noted that for the purposes of the Rule, “domicile” has two alternative meanings. The first is that the party concerned was domiciled in the foreign country under the normal rules as to domicile in English law. The second meaning is of domicile according to the law of the foreign country in family matters (s.46(5)).

[66]So far as an overseas divorce obtained in a country outside the British Isles otherwise than by means of judicial or other proceedings was concerned, Rule 82(1) of Dicey makes clear that, if it is effective under the law of that country: “It will, subject to Rule 83, be recognised in England if on the date on which it was obtained (s.46(3)(b)) (a) Each party to the marriage was domiciled in that country (s.46(2)(b)(i) or (b) Either party to the marriage was domiciled in that country and the other party was domiciled in … a country under whose laws the decree is recognised as valid (s.46(2)(b)(ii)) And, in either case, neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date (s.46(2)(c))” (a) Each party to the marriage was domiciled in that country (s.46(2)(b)(i) or (b) Either party to the marriage was domiciled in that country and the other party was domiciled in … a country under whose laws the decree is recognised as valid (s.46(2)(b)(ii))

[67]Applying the various principles I have recited to the form of the judgment in this case, and bearing in mind the provisions of s.48 of the 1986 Act as to the proof of facts relevant to recognition, I am satisfied that, subject to s.51 of the 1986 Act (Refusal of recognition), the copy of the judgment supplied by the husband is in form appropriate to be regarded as an overseas divorce obtained in Egypt and prime facie entitled to recognition by virtue of ss.45 and 46.

[68]Mr Howard‘s primary submission was that, on a proper analysis, the form of the Egyptian judgment was not itself the granting of a divorce but the recognition by the Egyptian Court of a divorce in the form of a bare talaq under Libyan law and that such a recognition by the Egyptian Court was not binding upon the English Court which was not obliged to follow suit. He also relied on the fact that there was no evidence that the divorce was indeed valid under Libyan law.

[69]With respect to Mr Howard, it seems to me that a broad-based submission of that kind did not focus sufficiently on the autonomous jurisprudence contained in sections 45-48 of the 1986 Act. It also left out of account the provisions of s.48(1) which, in relation to findings of fact expressly or by implication contained in an overseas judgment (including findings as to habitual residence and domicile within the country where the divorce was obtained) requires the Court to treat such findings as conclusive (where both parties have taken part in the proceedings), or (in any other case) as sufficient unless the contrary is shown. In this respect, Mr Howard does not suggest that the judgment is other than an authentic judgment of the Egyptian Court, or that it is other than appropriate to refer to it for the purpose of identifying any finding of fact made (whether expressly or by implication) on the basis of which the Egyptian Court assumed jurisdiction: s.48(1))

[70]It is to be noted that these were not proceedings in which both parties to the marriage took part. It is clear that they were proceedings in which the wife did not take part, albeit the Egyptian judgment recites that she was served with the proceedings. In this respect, although s.48(3) provides that, for the purposes of subsection (1)(a), a party to the marriage who has “appeared” in judicial proceedings shall be treated as having taken part in them, it does not seem to me that this provision is applicable in the instant case. There is no statutory guidance as to the precise meaning of the word “appeared” in this context. However, it is plainly a word which requires something more than mere proof of service, whether by means of the active participation in the proceedings of the party concerned, either in person or through a representative, or at the very least by means of some formal step taken, at least equivalent to the entry of an appearance in English proceedings. It has not been suggested, let alone established, that the wife has appeared in the Egyptian proceedings in either sense; nor does the judgment record or refer to any such finding on the part of the Egyptian Court. Accordingly, the position is that any finding of fact apparently made in the proceedings, whether expressly or by implication, is not conclusive evidence of that fact; rather it is sufficient proof of that fact unless the contrary is shown: s.48(1).

[71]Approaching the judgments of the Egyptian Court in the light of Mr Howard’s primary submission, the first question is whether or not, because the Egyptian Judgment is (as on its face it appears to be) the confirmation of a talaq under Libyan law, that means that it is ineligible for recognition as an overseas divorce “obtained by means of proceedings”, for the purposes of s.46(1). In my opinion it is not. To characterise it, as Mr Howard does, as involving a “bare” talaq begs the question as to the meaning of that term in the context of the legislation. It seems to me that the matter is covered by the case of Quazi. In that case what might also have been described as a “bare” talaq under Pakistani law was nonetheless held to be a valid divorce obtained by means of proceedings, by reason of the fact that formal steps amounting to “proceedings” had been taken, as required by Pakistani law, for the purposes of confirming or recognising its validity. It does not seem to me a material distinction that in the instant case the (judicial) proceedings brought in Egypt for the purposes of confirming or recognising the form of talaq alleged to have been pronounced by the husband concerned a talaq in respect of which the applicable law, when considering its validity, was that of Libya (the husband being a Libyan citizen). It has not been shown that the Egyptian Court lacks jurisdiction in such a case, and it is plain that the Egyptian judgment itself purports to be the validation and confirmation by a competent court of a talaq required to be so validated under the Libyan law stated to be applicable under Egyptian law.

[72]So far as concerns the ingredients for recognition of the divorce, the relevant explicit or implicit findings of fact upon which the Egyptian Court assumed jurisdiction were as follows. i) That “as proved by the instruments presented” both the husband and the wife had a residence in Egypt; ii) The husband had pronounced a talaq over the telephone on 18 January 2008; iii) That the husband, being a Libyan citizen, the law applicable to the validity of the talaq was Libyan law; iv) That Libyan law required proof of the talaq to be confirmed by the judgment of a competent court; v) That the Egyptian Court was a competent Court for that purpose. Pursuant to s.48 of the 1986 Act, these are all findings which I am obliged to regard as conclusive unless the contrary is shown.

[73]So far as finding (i) is concerned, there is of course no issue in relation to the husband’s residence in Egypt; it is the position of the wife which is the subject of challenge. In this respect, it is important to note that the relevant terms of the judgment are in the present tense i.e. they appear to deal with the position at the date of the hearing, cf. the reference to the husband’s case (“They currently reside in the Arab Republic of Egypt”). Whilst I am satisfied that, in relation to the wife, the contrary was the case at the time of the Egyptian judgment, the relevant date in relation to the question of recognition is whether or not the wife had a residence in Egypt at the commencement of the Egyptian proceedings i.e. in April 2008: see s.46(1)(b) and s.46(3)(a) of the 1986 Act. At that time, neither the judgment of Stephen Bellamy QC (which was awaited but not yet handed down) nor my own judgment a year later, were yet available and, on the assumption that papers were prepared for the Egyptian Court on the basis of the husband’s contentions as to the wife’s residence in April 2008, it is no matter for surprise that the Egyptian Court, considering the matter on the basis of the documentation as at that date, should have found as it did. Nonetheless, I am satisfied that, as at April 2008, when the husband initiated the Egyptian proceedings, not only was the wife resident in England, but she had ceased to be resident in Egypt, for the reasons set out in my judgment of 25 June 2009.

[74]So far as finding (ii) is concerned, I decline to make a finding in the course of these proceedings as to whether or not it has been shown that the husband did indeed pronounce a talaq to the wife on 18 January 2008. The wife denied it in evidence. However, I have not heard evidence from the husband on that issue which did not appear to me an issue suitable for summary resolution in the context of an application in which I was satisfied that non-recognition is justified on other grounds. The suggestion that the husband’s assertion in both the Egyptian and English Courts that he pronounced a telephone talaq is an invention is a serious matter. It justifies further and more detailed investigation than is necessary or appropriate in the context of an application to avoid resumption of the wife’s part heard divorce proceedings.

[75]As to findings (iii)-(v), there is no reason to suppose that there is error in any of the findings and certainly no question that the contrary has been shown.

[76]Whatever the true position in relation to the Egyptian Court’s findings (i) and (ii), I had and have no doubt that, on the state of the evidence before me and in all the circumstances of the case, I should refuse to recognise the validity of the Egyptian divorce under s.51(3)(a) of the 1986 Act.

[77]It is clear to me that, not only was no notice given to the wife of the hearing before the Egyptian Court which gave rise to the judgment of 22 November 2009, but such notice was deliberately withheld from the wife by the husband. I do not know, because neither the husband nor Mr Tawfick has made clear to my satisfaction, exactly when the husband was first aware that the Egyptian Court was proposing to proceed with the case. However, I am satisfied he must have been well aware of the position, but deliberately concealed it, by the time of the uncompleted hearing before me on 17/18 November 2009. Further, in the letter dated 2 December 2009 to the wife’s solicitors from the husband’s advocate, Mr Mahmoud, there is in my view a degree of obfuscation in relation to the participation of the husband in those proceedings. There is an implied suggestion (though it is not expressly stated) that he was a reluctant participant in front of an impatient court. Mr Mahmoud refers to the divorce proceedings in London “where it was mentioned that Egypt was not a competent body to deliberate the divorce claim and that the English Court is the competent body … to apply the law”, which is plainly a reference to the proceedings relating to jurisdiction and my judgment of 21 July 2009; however no mention is made of the Hemain order dated 21 July 2008 which prevented the husband from taking any further steps to progress the Egyptian proceedings, let alone any suggestion that that order or my judgment were brought to the attention of the Egyptian Court.

[78]Reverting to the terms of s.51(3)(a) it seems to me, that in the circumstances of this case, namely the existence of the restraining injunction upon which the wife (and indeed this Court) was plainly placing reliance and assuming compliance by the husband, it was incumbent upon the husband to give notice to the wife of any revival of the Egyptian proceedings and any intention of the husband to participate in them regardless of the terms of the injunction. If it be the case (though this was not a point which was raised by Mr Tawfick or taken by Mr Howard) that the term “notice of the proceedings” in sub-paragraph (i) of s.51(3)(a), was sufficiently satisfied by fact that the wife had notice of the original institution of the proceedings and that, for that reason, she cannot rely on the terms of sub-paragraph (i) as grounds for non-recognition, then I am nonetheless satisfied she can rely upon the terms of sub-paragraph (ii) for that purpose. It is clear to me that the wife has been deprived of an opportunity to take part in the proceedings which she should reasonably have been given, having regard to the nature of the proceedings and all the circumstances. If she had known that, despite the ostensible protection of the injunction she had obtained in this jurisdiction and the husband’s apparent acceptance of its terms, the husband might continue to pursue or participate in those proceedings, she should plainly have been afforded the opportunity to reconsider her position in relation to the Egyptian proceedings, and to receive advice from her advisors upon whom she was dependent as to whether to contest the matters of substance (i.e. the pronouncement of the talaq and the question of her residence) which were in issue. Further, she should have had the opportunity to appraise the Egyptian Court of the position in England and to take a point on forum non conveniens which is a doctrine applied by that Court: see the evidence of Mr Edge as reported in my earlier judgment of 25 June 2009 at paragraph 59.

[79]Finally, upon this aspect, Mr Howard submitted, by way of a fallback position, that the circumstances which I have outlined above, would justify the court in refusing recognition on the grounds that to grant it would be manifestly contrary to public policy: see s.51(3)(c). Had I been satisfied, upon a full and thorough examination of the position, that the husband had indeed obtained his Egyptian judgment by dishonestly asserting that he had pronounced a talaq over the telephone on or about 18 January 2008, I would have had no hesitation in acceding to Mr Howard’s submission. However, for reasons already stated, I have not felt it right to resolve that question. That said, I am satisfied that(1) the husband has been devious in relation to the hearing in Egypt, which he saw and took as an opportunity to avoid the risk of an adverse finding in these proceedings, and

(2) he consciously and deliberately avoiding bringing to the attention of the wife, her advisors or the Court the imminent restoration of the Egyptian proceedings, in order to deprive the wife of the opportunity to play any part in those proceedings or for her to obtain a further direction from this Court in respect of his own attendance and participation at the hearing in Egypt. The terms of s.51(3)(a) are to my mind sufficient and appropriate to cover circumstances such as those which exist in this case and I am satisfied that I should exercise my discretion to refuse recognition of the Egyptian judgment pursuant to the terms of that paragraph. That being so, lacking as I am any detailed submissions as to the ambit of the public policy exception provided for in s.51(3)(c) of the 1986 Act, I decline to refuse recognition on that ground also.

[80]I now turn to consider the substance of the wife’s petition. The parties’ respective cases

[81]In the short particulars contained in the petition, setting out the wife’s allegations of unreasonable behaviour by the husband, expanded upon in her sworn statement of 20 August 2009, the wife complained of three broad matters. First (paragraph 5.1), that throughout the marriage the husband had been verbally abusive towards her by the use of obscene and violent language in front of the children and other relatives of the family, coupled with a general complaint as to his humiliating and distressing behaviour. She stated that the husband told the children on numerous occasions that she was now too old as a wife and that he intended to marry a younger woman. In her short statement and oral evidence she further expanded upon these matters.

[82]It is to be noted that, in her sworn statement, she also complained of physical violence on the part of the husband towards her in the 1980s when the parties were living in Cairo. However, there was no such allegation in the petition and no application to amend was made in that regard. Mr Howard made clear at the outset of the hearing that those matters would not be relied upon by the wife, her case relating to the last 10 years of her marriage between the mid 1990s and the year 2006, when she left the matrimonial home in London. It was the gravamen of her case that, during those last years of marriage the husband belittled her, undermined her confidence, showed no respect for her opinions and that, when she made any attempt to express her views about decisions which needed to be taken about the children or other family issues he would tell her in front of guests, servants or her children that she did not know what she was talking about because she was uneducated. She complained that during the latter years of the marriage the respondent showed little or no affection towards her and that marital relations ceased between the parties in the last 10 years of the marriage.

[83]The wife’s second head of complaint (paragraph 5.2 of the petition and paragraph 16 of her sworn statement) relates to events in August 2005 which appear to have brought matters to a head. Her case is that, on holiday in Egypt, she learned that the husband was having an affair with a much younger woman called Malak who was a member of his extended family. Under pressure from his family, the husband admitted his involvement and, under further family pressure and as a gesture of goodwill, agreed to transfer certain properties in Egypt to the petitioner by way of compensation. However (paragraph 5.3 of the petition and paragraphs 16-19 of the wife’s sworn statement), before such transfers took place, during September 2006, the petitioner became aware from the discovery of a letter in her husband’s study that he had visited a family solicitor to take advice about divorce proceedings and she left the matrimonial home. At the time, because the husband had told her in August 2006 that he intended to sell the family home without giving the wife the reassurance she sought that they would purchase a smaller house in London, the wife became fearful that the husband had no intention of providing her with financial support, his ultimate aim being to move his U.K. assets from the jurisdiction. She therefore applied for a freezing order which was granted in October 2006.

[84]The husband’s affidavit in answer consists of a broad, general and complete denial of all the wife’s allegations. So far as paragraph 5.1 of the petition is concerned, he puts the wife to proof of her allegations and states that, in 2003, (i.e. well before the arrival of Malak on the scene) his son Fahmi came to Cairo and informed him, on Fahmi’s and his two brothers’ behalf, that unless the husband paid each of them £150,000 they would make the mother institute divorce proceedings against him and ruin his life, the current proceedings being the accomplishment of such threat. The husband expanded those assertions in his evidence alleging a conspiracy including the petitioner to fabricate her case against him which he says is unfounded in every particular.

[85]So far as paragraphs 5.2 and 5.3 of the petition are concerned, the husband asserts that they consist of fabricated allegations manufactured by the wife, their sons and daughters. He asserts that his agreement to transfer the Egyptian properties to the wife in 2005 together with payment of Egyptian Pounds 200,000 (approximately £20,000 sterling) was a gesture of goodwill and reassurance to the petitioner, so that she felt secure in the face of the lying reports which had been made to her by his children which suggested impropriety between himself and Malak. It was also his case in evidence that, apart from the upset caused to the wife by his relationship (such as it was) with Malak, which upset he understood to be assuaged by his agreement to transfer property to the wife, the marriage was a happy one throughout, apart from occasional arguments of the kind in which any happily married couple might indulge. He insisted in evidence that the assertion of the wife that sexual relations had ceased altogether during the last 10 years of the marriage was a mystifying lie, such relations having continued until a few days before her departure from the matrimonial home in A Avenue.

[86]I have heard at length from the wife and the husband in this case. Both gave evidence through an interpreter, though it was apparent that the husband, who would break into English from time to time, had a far better understanding of English than the wife. Both became emotional from time to time, though again the husband appeared a good deal more emotional and volatile than the wife. Both gave their evidence in terms of generality and broad assertion rather than with any degree of detail; again this was truer of the husband than the wife; though it is fair say that, since his case was that every allegation of the wife was simple falsehood and to a greater or lesser degree the result of a conspiracy among the entire family, an absence of detail is perhaps to be expected. In seeking to resolve this clash of evidence, I have lacked the advantage of another member of the family as a witness, it being apparent that none of the children is desirous of taking public sides against one parent or the other in court.

[87]Nonetheless, having heard the evidence, I am confident that it is the wife whose picture of the marriage is a true one and indeed, in certain passages in cross-examination, her evidence hardened and became more vivid in respect of her treatment in various respects. In particular, I am satisfied that, in the last ten years or so, the husband became particularly abusive, dismissive and insensitive towards the wife, belittling her and eroding her self-confidence and acting with extreme insensitivity towards her within the family. I am satisfied, as the wife made clear, that the husband would, in temper and outbursts of intemperate criticism, say that her family were sons of dogs and he would on occasion belittle and curse her, her background and where she came from. He told her on occasions that she was animal in her thinking and incapable of grasping anything, threatening in the last years of the marriage to bring in another woman who was better than her. In particular, he said on a number of occasions that, now she was elderly with poor legs and poor knees, he would look for and bring in a younger woman who would service and help him better than she would and that, eventually, even over small problems and arguments, he would make hurtful remarks of that kind. She stated that this left her feeling very low and depressed, so that she did not feel like a woman at all, and I have no doubt that was so. She said, and I accept, that in the last 10 years of marriage he ceased to show her affection or to have marital relations with her. She described herself as feeling devastated and broken, so that she did not feel like a woman.

[88]One particularly hurtful aspect of the husband’s name-calling was in relation to the wife’s development of vertiligo in later life, for which she used to see a doctor in Egypt for some years and in respect of which she was advised to avoid the sun. In addition to telling her that she was not a good wife and that he was going to look for a better one, the husband would remark upon the condition of her skin and say that she was now “a leprous woman” and would infect him.

[89]It is, and was in oral evidence, the husband’s case that all these assertions are lies. I do not accept that. In my view they had the ring of truth. Mr Tawfick challenged the wife on a number of matters of detail (some of which were not directly related to the matters on which she relied) to show that at various points her evidence was inconsistent with earlier detail given in her statements. In some respects he was successful; however, as I have indicated, I accept the broad picture painted by the wife. On the general question of whose evidence is the more credible I have no doubt. There are two particular matters upon which it appeared by way of litmus test, that it was the wife who was generally telling the truth and that the husband’s vigorous denials were unconvincing.

[90]First, the evidence of the wife that intercourse had ceased between the parties for a good 10 years before they parted. In this respect I simply did not believe the husband when he insisted in evidence that marital relations had subsisted until almost a few days before her departure. Second, I believed the wife in relation to the husband’s hurtful remarks about her vertiligo. In seeking to deal with that particular matter, which emerged in her cross-examination, Mr Tawfick by his questioning, and the husband in his evidence, sought to argue that the fact that vertiligo is not in fact infectious was an effective answer to any suggestion that the husband would have made his remarks about leprosy or the likelihood of such infection. I readily accept that the husband knew vertiligo was not infectious. However, I do not believe that the wife fabricated her evidence in that respect, it was apparent that she had found the husband’s remarks deeply hurtful as he must have realised she would.

[91]Equally, in seeking to counter her suggestions that the husband made upsetting remarks about her age and the infirmity of her knees, emphasis was placed by the husband in evidence upon the fact that he had booked her medical treatment for her and had, as he insisted, slept in a chair in her bedroom during several of her stays in hospital in London. The two are of course not necessarily inconsistent. However, when it was put to the wife by Mr Tawfick that L had spent long nights sleeping in a chair next to her in hospital room during the five operations she had had in London, the wife’s immediate and deep-felt response was that in fact he had only done so once and that such a demonstration of caring was scant excuse for the persistent insult and abuse which was his more normal treatment of her. Such remarks brought her evidence credibly to life.

[92]So far as the wife’s complaint of the husband’s relationship with Malak in 2005 was concerned, his evidence was shifting and evasive. It was the wife’s evidence, and this did not appear to be in dispute, that she had first met Malak, who stayed in the family house at Alexandria when she came over to attend the wedding of Najla, which was in the event called off. At that time the wife was unaware of the formation of any affection or relationship between Malak and her husband, but she later became suspicious that he was having a relationship with a woman because of his habit of carrying his mobile telephone with him all the time and retreating (on occasions to the shower) to have conversations out of her hearing. The balloon went up when, at the mother’s suggestion, Najla, with her brother Mohammed, had followed the father in his car on an evening when he drove to an apparent rendezvous with Malak in surreptitious circumstances which gave rise for suspicion and, upon being observed, drove rapidly away.

[93]According to the wife, in the emotional family scenes which followed the report of Najla, the husband wept, confessed that he was having a relationship with Malak, and admitted that, whenever he had been to Cairo, he had been meeting her. Others in the family became concerned over this matter and, at the suggestion of Mr Edrees, the brother of the husband, in order to show the wife goodwill and make reparation to her, the husband agreed to transfer three Egyptian properties into the wife’s name and to provide her with a sum of money equivalent to £20,000 (sterling). This matter was the subject of considerable investigation and findings before Stephen Bellamy QC (see paragraphs 38, 39 and 52 of his judgment) in which he stated that he did not believe the husband when he denied forming a relationship with Malak and preferred the wife’s evidence. Whilst he made no finding that the relationship was an adulterous one, lacking the necessary evidence, he found that it was clear that the wife and various of the children of the family believed it was an improper one; hence the agreement to enter into the donation contracts.

[94]I find myself in the same position. I have no doubt that the husband confessed to an improper relationship with Malak, though of what degree of intimacy is not clear. However, as the husband acknowledged in evidence, the revelation of the relationship was sufficient to render the wife extremely upset and it seems clear to me that the execution of donation contracts was agreed as a recognition and acknowledgment to the family of the hurt which he was well aware his conduct had caused the wife. It is plain that the relationship had been surreptitious and the husband was conscious of its impropriety. I am satisfied that the husband admitted a continuing relationship, conducted behind the wife’s back, in respect of which he apologised, adopting an attitude of contrition. In his evidence the husband produced an elaborate story, not previously advanced, that his rendezvous with Malak was an innocent one-off meeting for the purpose of making her a loan of money, they having agreed to meet at the rendezvous which he had made with her at a supermarket for that purpose. That explanation was thoroughly unconvincing. It was singularly absent from his affidavit by way of defence in the divorce proceedings and was first advanced in his oral evidence. When it was put to the wife in cross-examination that the husband had informed her that Malak had telephoned and asked for money from him which he offered to lend her, the wife vigorously and convincingly denied it, saying that this was the first time she had ever heard such a suggestion.

[95]Despite the husband’s agreement to execute the donation contracts, it does not appear that they were formally executed and I make no finding why that is so. According to the husband, the mother failed to nominate or authorise the lawyer he had chosen to complete the agreements. Whether or not that is correct, it is plain that, after her arrival back in England in August 2006, the wife became concerned at the husband’s determination to sell the matrimonial home in England and his unwillingness to reassure her that a smaller substitute would be purchased; his hurtful and unsympathetic conduct towards her continued; and, as a precipitating factor, she discovered the solicitor’s letter to the husband giving him advice in relation to divorce proceedings. In these circumstances, as stated in paragraph 19 of the wife’s sworn statement and unchallenged by the husband in his affidavit or evidence, when the wife tried to speak to him about her concerns and suggested transfer of the home into their joint names, he became angry, told her that he owed her nothing and he would never agree to such a transfer. He swore at her and said that he would sell the family home whatever it took. Shocked by his reaction and attitude, the wife left the home and subsequently instructed her solicitor to apply for a freezing order on her behalf.

[96]As I have already indicated, it has been the broad assertion of the husband that the wife’s evidence was a plethora of false accusations and lies put against him as part of a conspiracy initiated by three of his sons in 2003 (see paragraph 84 above). I do not doubt that there is now high ill feeling between the husband, his sons and, indeed his daughters. Certainly, they have afforded their mother refuge and support following her leaving the matrimonial home. It is notable that none was called by the wife to give supporting evidence in relation to a number of her allegations. However, I am not surprised at the unwillingness of the family to be involved in proceedings which, according to the husband (and I do not doubt) bring about a degree of shame upon the family and adversely affect their reputation in their social and cultural circle. Having heard and studied the parties in the course of their evidence, I am satisfied that the wife’s allegations of persistent hurtful and unreasonable behaviour towards her are made out and that she cannot reasonably be expected to live with the husband. It is in any event apparent that the marriage has irretrievably broken down.

[97]I therefore grant the wife a decree nisi on the grounds of the husband’s unreasonable behaviour.

Ancillary Relief

[98]Pursuant to my order dated 21 July 2009, the wife’s application for various kinds of ancillary relief dated 6 May 2008 was listed for a first appointment to be heard directly after the trial of the divorce cause. Pursuant to the order of Mr Justice Charles dated 2 October 2009, forms E with attachments have now been exchanged and, at the end of the hearing when I indicated that judgment would be reserved, Mr Howard placed before me a draft order by way of further directions on first appointment. Mr Tawfick offered some assistance and in particular conveyed to the Court that the husband accepted the wife’s range of gross values for two properties in dispute namely 22 W Lane London NW6 (between £850,000 and £950,000) and 2 M Avenue (between £250,000 and £325,000). He also indicated the husband’s agreement to an order that he admit or cause to be admitted the valuer chosen on behalf of the wife, to the three properties in Egypt, namely Flat 6, Ibn Al-N Street; Flat 13, C Street; and Unit 5, L Village. However, Mr Tawfick indicated, as he was entitled to do, that he did not wish further to act as advocate on behalf of the husband in relation to the ancillary relief proceedings, and that the husband would be seeking to make application for the release of funds for legal representation in those proceedings. I indicated that if the husband wished to make such an application he would sensibly do so at the time when I handed down judgment. There then followed dialogue between the Court and the parties making clear that such an application should be supported by an affidavit in which a number of matters should be dealt with and it was agreed that the wife’s solicitors would put those matters into writing and forward them to the husband for the purposes of his swearing such an affidavit. In order to deal with any application by the husband and to finalise the terms of the directions to be given, the parties should fix a one hour appointment before me following the hand down. In the light of my imminent retirement, the substantive hearing of the wife’s application for ancillary relief will be listed before another Judge.

Cited in 1 later judgment

Golubovich v Golubovich 2010