Sulaiman v Juffali [2001] EWHC 556 (Fam) (09 November 2001)

HTML VERSION OF JUDGMENT ____________________ Crown Copyright © MR JUSTICE MUNBY I have before me a petition for divorce filed on 22 June 2001. Nothing turns on the grounds upon which it is alleged that the marriage has broken down irretrievably and I say nothing about them. It is common ground that the husband and the wife (as I shall refer to them for convenience, I trust without causing any offence, for none is intended, and without in any way prejudging the issues before me) are both nationals of and domiciled in the Kingdom of Saudi Arabia. It is likewise common ground that they are both Muslim and that they were married in S audi Arabia in accordance with Sharia law on 17 June 1980. It is also common ground that by a 'bare talaq' pronounced by the husband in England on 23 June 2001 - the day after the filing of the petition - and registered with the Sharia court in Saudi Arabia on 26 June 2001 the marriage was, as a matter of traditional Sharia law as applied in the Kingdom of Saudi Arabia, finally and irrevocably dissolved. The central issue before me is whether that divorce, valid by the law of the country of the parties' domicile, is to be recognised in this country. The pleadings Paragraphs 2 and 3 of the wife's petition are as follows: "2 The Petitioner and Respondent last lived together as husband and wife at [an address in London]. 3 The Petitioner has been habitually resident in England and Wales for at least one year immediately preceding the date of this Petition, namely at [the address in London]..." Paragraphs 3 and 4 of the husband's answer dated 20 July 2001 are as follows: "3 The said marriage was validly dissolved by pronouncement by the Respondent herein of a talak on 23 June 2001, which said talak was registered by Faiez Bin Mohammed Al-Dakheel, Judge of the Security and Marriages Court, in Jeddah in the Kingdom of Saudi Arabia, on 26 June 2001 and is evidenced by the Deed of Divorce issued by the Ministry of Justice, Security and Marriage Court, Jeddah on that date and numbered 22/16. Further, and without prejudice to the foregoing: 1 It is denied that the Petitioner was habitually resident in England and Wales at the date of presentation of the Petition herein. 4.2 It is further denied that the Petitioner was resident or habitually resident in England and Wales for at least a year immediately preceding presentation of the Petition herein. 4.3 It is denied (if it be so alleged) that the Respondent is habitually resident in England and Wales. 4 .4 It is averred that both parties are nationals of and are domiciled in the Kingdom of Saudi Arabia, and that they are and were at all material times habitually resident there. 4.5 In the premises, it is denied that the court has jurisdiction to entertain the Petition herein." Paragraphs 3-6 of the wife's reply dated 25 September 2001 are as follows: "3 The Petitioner denies Paragraph 3 of the Answer. The talaq did not validly dissolve the marriage in England and Wales and is not entitled to recognition in this jurisdiction. 4. The Respondent was present within England and Wales on 23 June 2001, the date on which he pronounced the talaq. The tal aq was therefore not obtained in a country outside the British Islands. 5. In the alternative, the talaq was not initiated in the same country as that in which it was ultimately obtained, given that it was pronounced in England and Wales whilst the divorce is alleged to have been obtained in the Kingdom of Saudi Arabia. 6. Further, the talaq did not amount to proceedings whether judicial or otherwise. The pronouncement of the bare talaq effected a concluded divorce under Saudi law. The appearance before the Judge of the Sharia Court merely provided evidence by certification that a divorce had already been pronounced. In the premise, the talaq is not entitled to recognition as the Petitioner was habitually resident in the United Kingdom throughout the period of one year immediately preceding the date on which the talaq was obtained." I should add that the husband's counsel, on instructions, accepted before me that the talaq was indeed pronounced by the husband in England. Paragraph 7 of the reply sets up, in the further alternative, assertions that recognition of the validity of the talaq should be refused in accordance with sections 51(3)(a)(i) or 51(3)(c) of the Family Law Act 1986. Paragraph 8 particularises the wife's claim to have been habitually resident in England and Wales during the relevant period. I do not need to refer to any other parts of the pleadings. The expert evidence There are two expert opinions on the law of Saudi Arabia. The first, dated 6 October 2001, is that of Dr Mujahid M Al-Sawwaf, instructed by the husband's solicitors. The second, dated 11 October 2001, is that of Mr Ian Edge, instructed by the wife's solicitors. Both are experts of the highest distinction, well qualified to express opinions in relation to the legal effect of the talaq under Saudi law. Mr Edge, I might add, was the main expert who gave evidence in relation to the legal effect of a talaq under Lebanese law in El Fadl v El Fadl [2000] 1 FLR 175. He was also, as it happens, the main expert, on that occasion giving evidence in relation to the legal effect of a talaq under Jordanian law, in a case that was before me on 19 October 2001. I need not go into the expert evidence in any detail. In all essentials the experts are at one. They are agreed that Saudi law recognises what it has become conventional in this country to call a 'bare talaq'. As Mr Edge, the wife's appointed expert, says: "Saudi Arabia is one of the few countries in the Middle East in which traditional Islamic (Sharia) law continues to apply theoretically in its entirety. ... Registration of the talaq is not a formal requirement in traditional Islamic law. A number of countries in the Middle East have, however, introduced registration of talaq with a Sharia Court as a legal requirement. This is not true of Saudi Arabia where it has not been made a mandatory requirement to register a talaq by any form of regulation." Dr Al-Sawwaf, the husband's appointed expert, says this: "Under Islamic law as applied in the Kingdom of Saudi Arabia, a husband can pronounce his own divorce by pronouncing talak for any reason whatsoever, wherever he is and even if no other person is present to hear his pronouncement and witness his intention to divorce, which is, ultimately, a matter between the man and God. The man is required simply to utter three times the words "I divorce you" or "You are divorced". The talak is valid and effective as soon as it is pronounced. While there is no legal requirement to register a divorce in order for it to be valid and effective in the Kingdom of Saudi Arabia, as a matter of modern administrative practice in Saudi Arabia, divorcing husbands now usually go to a court (either personally or through an attorney-in-fact) to register their divorce. ... The validity of a divorce is, as noted above, a matter between a man and God and is not dependent in any way upon (a) the place (or places) at which talak is pronounced, (b) the participation or authorization of judicial authorities or (c) the residence of either party to the marriage. Since the divorce is a matter between a man and God, the divorce is not viewed as becoming effective in any particular political jurisdiction. ... Under Islamic law as applied in the Kingdom of Saudi Arabia, the pronouncement of talak by Walid Ahmed Al Juffafi is of itself effective in dissolving the marriage between him and Basma Sulaiman Al Sulaiman." So, on the fundamental point both experts are agreed. Under Islamic law as applied in the Kingdom of Saudi Arabia, the husband's pronouncement of talaq in England on 23 June 2001 was, of itself, effective in dissolving the marriage The issues The matter came before me on 30 October 2001, when I was sitting as the urgent applications judge, for directions pursuant to an order made by District Judge Moorhouse on 17 August 2001. The wife was represented by Mr Nicholas Mostyn QC and Mr Philip Moor QC, the husband by Miss Florence Baron QC. At the end of the hearing I announced my decision and said that I would give my reasons later. That I now do, I have before me four applications. The first is an application by the husband, by summons dated 20 July 2001, for an order for the trial as preliminary issues of two issues going to the jurisdiction of this court to entertain the wife's petition, namely (i) whether the wife was habitually resident in England and Wales as alleged and (ii) whether the marriage is subsisting or has been validly dissolved, That application was adjourned by the District Judge on 17 August 2001 to a High Court Judge "for directions as to trial" (time allowed one hour). The second is an application by the husband, by summons dated 24 October 2001, seeking leave to amend his answer as follows (I set out the proposed new wording in italics): "4.5 In the premises, it is denied that the court has jurisdiction to entertain the Petition herein under Council Regulation (EC) No. 1347/2000 of 29 May 2000 ("the Council Regulation "), whether as alleged or at all. 4.6 It is further averred thaf:- 4.6.1. no court of a Contracting State within the meaning of s5(lA) of the Domicile and Matrimonial Proceedings Act 1973 has jurisdiction under the Council Regulation; and 4.6.2. neither party was domiciled in England and Wales on the date on which the proceedings herein were begun. 4.7. In the premises, it is further denied that the court has jurisdiction to entertain the Petition herein under s5(2) of the Domicile and Matrimonial Proceedings Act 1973" The third is an application by the wife, notified informally, as I understand it, by a letter sent shortly before the hearing, that I summarily determine in her favour each of the two issues identified in the first of the husband's two summonses. Finally, I have listed before me for directions the wife's application in Form A for ancillary relief. On 17 August 2001 the District Judge adjourned for hearing by a High Court Judge the first appointment listed for 30 October 2001, including the issue as to the filing by the parties of Forms E. There are, therefore, three jurisdictional issues which, in one form or another, are before me. These are: (i) whether the court has jurisdiction at all under section 5(2) of the Domicile and Matrimonial Proceedings Act 1973; (ii) whether the marriage is subsisting or has been validly dissolved, in other words whether the talaq is entitled to recognition under Part II of the Family Law Act 1986; (iii) whether the wife has been habitually resident in England and Wales for a sufficient time to found jurisdiction in this court. I shall deal with these in turn. The Domicile and Matrimonial Proceedings Act 1973 Section 5(2) of the 1973 Act (as amended) provides that the High Court " ... shall have jurisdiction to entertain proceedings for divorce ,,. if (and only if) - (a) the court has jurisdiction under the Council Regulation; or (b) no court of a Contracting State has jurisdiction under the Council Regulation and either of the parties to the marriage is domiciled in England and Wales on the date when the proceedings are begun." As is well known, prior to its recent amendment jurisdiction under section 5(2) was founded on either domicile (section 5(2)(a)) or one year's habitual residence (section 5(2)(b)). It is common ground that the court does not have jurisdiction under section 5(2)(b), for neither of the parties is domiciled in England and Wales. The question is whether the court has jurisdiction under section 5(2)(a). Section 5 (1A) defines the Council Regulation as meaning Council Regulation (EC) No 1347/2000 of 29 May 2000, commonly referred to as 'Brussels II'. The relevant provision of the Council Regulation is Article 2: "1. In matters relating to divorce, legal separation Dr marriage annulment, jurisdiction shall lie with the courts of the Member State: (a) in whose territory: the spouses are habitually resident, or the spouses were last habitually resident, in so far as one of them still resides there, or the respondent is habitually resident, or in the event of a joint application, either of the spouses is habitually resident, or the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his 'domicile' there; (b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the 'domicile' of both spouses. 2. For the purpose of this Regulation,'domicile' shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland." Mr Mostyn says the case could not be clearer. Assuming for the purposes of this argument that the wife can establish as a matter of fact that which she alleges in paragraph 3 of her petition - and that is plainly the assumption on which this part of the argument has to proceed - then the court will have jurisdiction under section 5(2)(a) because, he says, the wife will on that hypothesis plainly satisfy the fifth head of jurisdiction mentioned in Article 2(1)(a), namely that "the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made". Miss Baron asserts boldly that section 5(2)(a) does not give the court jurisdiction to deal with this divorce at all because, she says; the Council Regulation does not apply to this case as the parties, being Saudi, are not nationals of a Member State. As I understand her argument she does not point to any particular provision either in Article 2 or elsewhere in the Council Regulation as indicating that this is so. She merely submits that the Council Regulation, being a legislative instrument of one of the organs of the European Community, cannot apply, or cannot have been intended to apply, to persons who are not citizens of one of the Member States of the Community. I cannot accept this argument which, if she will forgive me for saying so, seems to me utterly devoid of all merit. It is not supported by reference to any authority or principle of Community jurisprudence. There is nothing to support it in the language of the Council Regulation. On the contrary, Article 2 read according to its plain words has a perfectly clear meaning: generally speaking (and leaving aside the additional qualification called for under the sixth head) jurisdiction under Article 2(1)(a) is founded simply and solely on the habitual residence of one or other or both of the spouses, not on their nationality. Moreover, if this argument is correct it would mean that the effect of the Council Regulation - and an effect which so far as I am aware has not as yet been perceived by any commentator - is to deprive the court of the jurisdiction founded on habitual residence which it previously had under section 5(2). The language of Article 2 is itself in my judgment, quite clear. But the matter does not end there. For the meaning of Article 2 is, in my judgment, put beyond any doubt and any sensible possibility of argument by the recitals to the Council Regulation. Recital (8) states that: "The measures laid down in this Regulation should be consistent and uniform, to enable people to move as widely as possible. Accordingly, it should also apply to nationals of non-member States whose links with the territory of a Member State are sufficiently close, in keeping with the grounds of jurisdiction laid down in the Regulation " Recital (12) states that: "The grounds of jurisdiction accepted in this Regulation are based on the rule that there must be a real link between the party concerned and the Member State exercising jurisdiction; the decision to include certain grounds corresponds to the fact that they exist in different national legal systems and are accepted by the other Member States" Nothing could be clearer. In my judgment the language of section 5(2)(a) and of Article 2 is quite clear. As Mr Mostyn correctly submits, the court has jurisdiction to hear the wife's petition if (but only if) she can establish as a matter of fact that which she alleges in paragraph 3 of her petition, namely that she was habitually resident in England and Wales for at least a year immediately before th^petition was filed. Miss Baron's argument to the contrary is, with all respect, devoid of substance. I dismiss the husband's summons of 24 October 2001. The Family Law Act 19S6 The wife asserts in the light of the expert evidence that the talaq is unquestionably not entitled to recognition. Moreover, she says, since it is now incontrovertible that the talaq is not entitled to recognition, she is entitled to and seeks a summary determination of the issue in her favour. The wife's case is simple. Put shortly it is this: In the first place this talaq is the paradigm of a 'non-proceedings divorce' and, having been obtained in England other than through a court, clearly falls foul of section 44(1) of the 1986 Act. Alternatively, even if the involvement of the Sharia court in some way was part and parcel of the process, the talaq is still invalid as a transnational divorce. In that connection Mr Mostyn refers to R v Secretary of State for the Home Department ex p Ghulam Fatima [1986] AC 527. Miss Baron says that the talaq complies with all necessary formalities required in Saudi Arabia, that it has been registered there, and that it is effective and recognised in the society from which both the husband and the wife come and in the state of which they are both nationals and where they are both domiciled. Further, it is said by the husband that the wife has chosen to take steps which are alien to the parties' culture and traditions. I can accept all Miss Baron's assertions. I cannot, however, accept her submission in conclusion that the talaq is accordingly capable of recognition in this country. In my judgment it quite plainly is not. Section 44(1) of the 1986 Act provides that, subject to certain exceptions which are not material for present purposes, "no divorce... obtained in any part of the British Islands shall be regarded as effective in any part of the United Kingdom unless granted by a court of civil jurisdiction." Section 45(1)(a) of the 1986 Act provides, so far as material for present purposes, that: "Subject to ... section ... 51 ... 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 ... by virtue of sections 46 to 49 of this Act". Section 46(1) specifies the requirements that have to be met if the validity of an overseas divorce "obtained by means of proceedings" is to be recognised. Section 46(2) specifies the requirements that have to be met if the validity of an overseas divorce "obtained otherwise than by means of proceedings" is to be recognised. Section 51(3) identifies certain grounds upon which the court can exercise its discretion to refuse to recognise by virtue of section 45 the validity of an overseas divorce. It is common ground in the light of the expert evidence that, if the husband's talaq is properly to be considered as an overseas divorce obtained by means of proceedings, the requirements of section 46(1) are satisfied. It is likewise common ground that, if the husband's talaq is properly to be considered as an overseas divorce obtained otherwise than by means of proceedings, the requirements of section 46(2) are satisfied, subject only to the husband being able to prove that the wife was not habitually resident in the United Kingdom throughout the period of one year immediately preceding the date of the talaq. The crucial question, according to Mr Mostyn, and I agree, is thus whether or not the talaq is an "overseas divorce" within the meaning of section 45(1), that is, "a divorce... obtained in a country outside the British Islands". Mr Mostyn submits that the talaq quite plainly was not "obtained in a country outside the British Islands". It was, he says, equally plainly "obtained in [a] part of the British Islands" as that phrase is used in section 44(1). Accordingly, he says, the talaq is not entitled to recognition in accordance with section 45; on the contrary, he says, section 44(1) requires me to treat the talaq as ineffective to dissolve the marriage. I can see no possible answer to Mr Mostyn's submissions and Miss Baron was not able to articulate one beyond asserting that the talaq was "obtained" in Saudi Arabia because, as I understood the argument, it had been registered there, complies with all necessary formalities required there, and is thus effective and recognised in the society from which both the husband and the wife come and in the state of which they are both nationals and where they are both domiciled. None of that, as I have already said, in any way meets Mr Mostyn's argument. The simple fact in the light of all the expert evidence is that this talaq - I say nothing of any other kind of talaq - was "obtained" in this country, it was not "obtained" in Saudi Arabia. It was "obtained" in this country because, as explained by the experts, the effect of this talaq, pronounced by the husband in this countiy on 23 June 2001, was, as Dr Al-Sawwaf put it, to dissolve the marriage "as soon as" the talaq was pronounced. The validity of this talaq was "not dependent in any way upon ... the participation or authorisation of judicial authorities". The point is really not capable of much elaboration. In my judgment such a talaq is "obtained" in this country, it is not obtained anywhere else. In support of his contentions Mr Mostyn referred me to two authorities: Radwan v Radwan (No 2) [1973] Fam 35 and R v Secretary of State for the Home Department ex p Ghulam Fatima [1986] AC 527. They need to be put into context. Prior to the Recognition of Divorces and Legal Separations Act 1971 and the Domicile and Matrimonial Proceedings Act 1973 questions such as that with which I am concerned were regulated by the common law. The common law would in principle recognise the validity of a divorce, even if it took place in this countiy out of court, if it was recognised as valid by the law of the country of the parties' domicile. Thus in Har-Shefi v Har-Shefi (No 2) [1953] P 220 the court recognised as valid in dissolving the marriage of parties domiciled in Israel a Jewish get given and received in the presence of the London Beth Din. And in Qureshi v Qureshi [1972] Fam 173 (as to which see Quazi v Quazi [1980] AC 744 at p 823G) the court likewise recognised as valid in dissolving the marriage of parties domiciled in Pakistan a talaq pronounced in this country. It is in my judgment clear, therefore, that had the matter remained governed by the common law the talaq pronounced by the husband in this case would in principle have been recognised by the court as a valid divorce. However the law was changed by section 16(1) of the 1973 Act, the ancestor of section 44(1) of the 1986 Act. This provided that: "No proceedings in the United Kingdom, the Channel Islands or the Isle of Man shall be regarded as validly dissolving a marriage unless instituted in the courts of law of one of those countries." There is no doubt that section 16(1) was intended to reverse the decision in Qureshi v Qureshi [1972] Fam 173. There is equally no doubt that section 16(1) applied to a bare talaq: see Quazi v Quazi [1980] AC 744 at p 818B, Chaudhary v Chaudhary [1985] Fam 19 at pp 28D, 42F, 47G and R v Secretary of State for the Home Department ex p Ghulam Fatima [1985] QB 190 at p 195F. As Lord Ackner said in R v Secretary of State for the Home Department ex p Ghulam Fatima [1986] AC 527 at p 534G: "That provision was intended to reverse the decision in Qureshi v Qureshi [1972] Fam 173, where recognition was given to full talaq proceedings which took place wholly within the United Kingdom. It is thus clearly the policy of the legislature to deny recognition to divorces obtained by persons within the jurisdiction, and therefore subject to the laws of the United Kingdom, by any proceedings other than in a United Kingdom court." The legislative policy referred to by Lord Ackner is clearly carried forward by section 44(1) of the 1986 Act. That a bare talaq pronounced in this country is "obtained" within this country within the meaning of section 44(1) of the 1986 Act is, in my judgment, too clear for argument. Mr Mostyn, as I have said, referred me to Radwan v Radwan (No 2) [1973] Fam 35, which illustrates the point, albeit that it was actually a decision on section 2(a) of the 1971 Act. But there are other authorities on the point: see R v Registrar General of Births, Deaths and Marriages ex p Minhas [1977] QB 1 at p 5H, Chaudhary v Chaudhary [1985] Fam 19 at p 28D and R v Secretary of State for the Home Department ex p Ghulam Fatima [1985] QB 190 at pp 195F, 196B, 199F. (I should add that the relevance for this purpose of the decision in Minhas is not affected by the fact, pointed out in Quazi v Quazi [1980] AC 744 at p 8160 and wRv Secretary of State for the Home Department ex p Ghulam Fatima [1985] QB 190 at pp 199B, 2Q8A, that the court in Minhas misunderstood the relevant foreign law and thus treated as a bare talaq what was in fact a transnational talaq.) Accordingly, Mr Mostyn succeeds in his primary contention that this talaq, having been obtained in this countiy other than through a court, falls foul of section 44(1) of the 1986 Act. I should add that in any event, and even if the involvement of the Sharia court in some way was part and parcel of the process (which, in my judgment, given the expert evidence, it was not), the talaq would still plainly be invalid as a transnational divorce: see R v Secretary of State for the Home Department exp Ghulam Fatima [1986] AC 527, to which Mr Mostyn referred me, and Berkovits v Grinberg (Attorney-General Intervening) [1995] Fam 142. I note in passing that, perhaps not surprisingly, the position is the same in relation to a Jewish get. Just as Qureshi v Qureshi [1972] Fam 173 is no longer good law in relation to a talaq, so Har-Shefi v Har-Shefi (No 2) [1953] P 220 is no longer good law in relation to a get: set Maples (formerly Melamud) v Maples [1988] Fam 14 at p 19G. And just as R v Secretary of State for the Home Department ex p Ghulam Fatima [1986] AC 527 shows that a transnational talaq is not entitled to recognition, so Berkovits v Grinberg (Attorney-General Intervening) [1995] Fam 142 shows that neither is a transnational get. Before leaving this topic I should make it clear, and I trust he will accept, that my decision is not in any way founded upon any lack of respect either for the husband's religion or for his culture. Although historically this countiy is part of the Christian west, and although it has an established church which is Christian, I sit as a secular judge serving a multi-cultural community of many faiths in which all of us can now take pride, sworn to do justice "to all manner of people". Religion - whatever the particular believer's faith - is no doubt something to be encouraged but it is not the business of government or of the secular courts. So the starting point of the law is an essentially agnostic view of religious beliefs and a tolerant indulgence to religious and cultural diversity. A secular judge must be wary of straying across the well-recognised divide between church and state. It is not for a judge to weigh one religion against another. All are entitled to equal respect, whether in times of peace or, as at present, amidst the clash of arms. In relation to Islam I entirely share, and would with respect wish to endorse, the positive views expressed by Sir Jocelyn Simon P in Qureshi v Qureshi [1972] Fam 173, by Hughes J in El Fadl v El Fadl [2000] 1 FLR 175 at pp 190F-191B and by Thorpe LJ in Al Habtoor vFotheringham [2001] EWCA Civ 186 [2001] 1 FLR 951 at pp 970-971 (para 44). I am very conscious that in this case, just as in Qureshi v Qureshi , and as Sir Jocelyn Simon P put it in that case at p 20 IF, "the rule of foreign law under which the husband has proceeded has the . authority of the holy scriptures of the common faith of himself and the wife." But I cannot, I regret, give effect to it. I have to give effect to the policy declared by Parliament in section 16(1) of the 1973 Act and now in section 44(1) of the 1986 Act. This policy is that, irrespective of the parties' domicile and religion, informal divorces obtained in this country, that is divorces obtained in this country otherwise than by proceedings in a court of civil jurisdiction, are not to be recognised. It is not for me to question this policy nor would I wish to do so. I merely add that the policy applies indiscriminately to all informal divorces, the religious as much as the non-religious, irrespective of the nature of the parties' religious or other beliefs. Miss Baron disputed that this was an issue to be dealt with summarily at a directions hearing. She pointed out that, as I have said, it was only very shortly before the hearing that the wife's solicitors first indicated that they were going to be seeking a summary determination of the issue. She said - and I quite accept - that she had not in the time available been able to research the point fully. Nor for that matter, it would seem, had Mr Mostyn and Mr Moor. That is obviously a matter to which I gave the most careful attention before deciding that I nonetheless could, fairly and without risk of any injustice, proceed as in the event I decided I should. But the longer the debate went on before me the more obvious it became to me that Mr Mostyn's arguments were clearly right and that an adjournment could avail Miss Baron and her client nothing. The authorities to which Mr Mostyn referred me seemed clear enough on their own. The additional authorities to which I have referred in this judgment merely reinforce in my mind the correctness of the decision to which I had come and which I announced to the parties at the conclusion of the hearing. I have found nothing in any of the authorities which I have looked at since the hearing to throw the slightest doubt on my decision. Quite the reverse. Habitual residence This leaves as the only remaining jurisdictional issue the question of the wife's habitual residence. Mr Mostyn refers me to Ikimi v Ikimi [2001] EWCA Civ 873 [2001] 2 FCR 385 , which he says has substantially clarified the law in this area. He submits that, applying the tests which he says can be extracted from Ikimi on what he claims are the "almost agreed facts" of this case, I should now determine without more ado that the wife was habitually resident in England and Wales during the period of one year ending on 22 June 2001. He submits further that to adjourn this issue for future determination would in any event be an exercise in futility. He asserts that even if the wife was not able to satisfy the habitual residence requirement as at 22 June 2001 she "unquestionably" can today, so that she could seek leave to file a fresh petition today which "would" satisfy the requirement. This latter assertion is, if I may say so, merely forensic hyperbole. No doubt her case if matters have to be assessed as at today is stronger than if assessed as at 22 June 2001, but it is certainly not irrefutable. Mr Mostyn's real point is that, whatever the position may be if assessed as at 22 June 2001 or as at today, there will come a time fairly early next year - he says the relevant date is 18 February 2002 - when if the wife remains continuously in this country, as she intends, her case in relation to habitual residence will be irrefutable. That may or may not turn out to be so - it does after all depend on what the wife does for the next three months or so - but I have to judge the position today and by reference to a petition which was in fact filed on 22 June 2001. I am not satisfied that I can properly resolve this matter without a much more detailed examination and analysis of the evidence - whether with or without cross- examination of the parties - than is possible at a short directions hearing. There is, I think, force in Miss Baron's submission that the decision in Ikimi makes it clear that the court does not simply "count days" but looks at the quality of residence over the relevant period. She says, moreover, that the wife's case will need to be tested with cross-examination. In the circumstances I propose to say nothing more about the parties's respective contentions on the substance of the matter. The issue of the wife's habitual residence will have to go over for a full hearing. It appears that the hearing is likely to be in February 2002. The parties are agreed that the appropriate time estimate is two days and that both should attend the hearing to give evidence and be cross-examined. So much for the contention that the matter is so clear as to be fit for summary determination at a one hour hearing! Ancillary relief Mr Mostyn says that there is, nonetheless, no reason why the ancillary relief proceedings should not be progressed in the meantime. He seeks directions for the filing by both parties of their Forms E. I do not agree. Miss Baron submits that, until it is established that the court has jurisdiction, the court is not empowered to grant any relief other than maintenance pending suit - something which is not in issue here - and that the wife's application is therefore premature. I do not pause to consider whether Miss Baron is right in disputing that I have any jurisdiction to give Mr Mostyn the relief he seeks. Even if she is not, it would not in my judgment be right to require either the husband or the wife to disclose details of their assets to the court until it has been established - if it ever is - that the court has jurisdiction. Accordingly I am not prepared to give Mr Mostyn the directions he seeks under this head. Other matters Finally, Mr Mostyn seeks directions that the divorce petition, whether it turns out to be defended or undefended, be tried either at the same time as or immediately following the hearing of the issue in relation to the wife's habitual residence. I agree that this is a sensible and appropriate way forward and will direct accordingly. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII