N A v M O T [2004] EWHC 471 (Fam) (30 January 2004)

Neutral Citation Number: [2004] EWHC 471 (Fam) Case No: FD00 D 11453 IN THE HIGH COURT OF JUSTICE FAMILY DIVISION Royal Courts of Justice Strand, London, WC2A 2LL 30th January 2004 B e f o r e : The Honourable Mrs Justice BARON D. B. E. ____________________ Between: N A Petitioner - and – M O T Respondent ____________________ MS GAIL CARRODUS (instructed by Messrs Fisher Meredith of London ) for the Applicant MR BERNARD WALLWORK (instructed by Messrs Rowlands of Manchester ) for the Respondent Hearing dates : 29 th and 30 th January 2004 ____________________ HTML VERSION OF JUDGMENT ____________________ Crown Copyright © Mrs Justice BARON This is case concerns 2 conjoined applications by the Petitioner/Wife - the first, for full ancillary relief following upon her divorce from the Respondent/Husband and the second a Part 8 claim for the recovery of her marriage portion of 1,000 Yek Bahar Azadi gold coins (or their sterling equivalent being some £60,000) which are due and payable, so it is alleged, pursuant to the parties' marriage contract entered into on the 30 th July 1998 at the Marriage Registry No 19 of Tehran, The Islamic Republic of Iran. In a sense the two applications are wholly synonymous because the Petitioner has limited her ancillary relief claim, by concession, to the exact same sum. Thus, the essence of the Wife's claim is that she is entitled to recover the monies that her husband agreed that he would pay her on entering into this marriage. The Factual matrix . (a) The parties are both Iranian by Nationality and are both Moslems by religion. They are bound by the code of Sharia Law. The Husband was born in Iran on the 22 nd June 1953 (so he is 50 years old). In about 1978 he came to England and he has made his home in the Manchester area for a number of years. In about 1980, he married an English woman and he has two grown up daughters from that marriage namely S who is 23 years old and V who is 20 years old. He continues to own his former matrimonial home at P Avenue, (as to 50% with his 1 st wife) and he has some 3 investments properties in C Road. He had a modest business called ".. Take Away" – which he sold recently using the net proceeds of sale to invest in further properties. He completed a Form E in which he asserted that his assets were about £300,000. He answered a questionnaire but he did not give detailed disclosure because he made a concession that he could afford to meet the Wife's claims. This was sensible, given that they only amounted to a maximum of some £60,000. (b) The Wife was born the 13 th January 1969 (so she is now 35 years old). She was well educated, having studied English translation at University in Iran. On completion of her tertiary education, she found employment in administrative posts and in public relations. When her last paid employment (which was a fixed term contract) ended, she decided to start her own business. She entered into a partnership for a period of six months (with a prospective end date in June 1998). Essentially, the partnership ran a café, situated at the local university. (c) The Wife lived in a rented flat with her sister. She had some modest savings (the amount of which has not been particularised) and she had some monies (amount unknown) invested with moneylenders that provided her with a reasonable rate of interest. (d) In March 1998 (when she was first introduced to the Husband), the Wife was 29 years old, had never married and was, for an Iranian woman, relatively independent. Her business was in its infancy and so it is difficult to predict whether it would have been profitable in the long term. Suffice it to say, she had an autonomous life with no debts. (e) After the end of his 1 st marriage, the Husband decided that he wished to remarry and he went to seek a bride in Iran. He was, as I have said introduced to the Wife, and they had a number of chaperoned meetings. They seemed to like each other and it was decided that they would marry. In accordance with custom, the financial ramifications of the marriage then fell to be considered. In Iran a husband is expected to provide a marriage portion – this is the provision of capital for the wife which shall, on the marriage and thereafter, be her sole property absolutely. The amount is a matter of negotiation between the parties. (f) It is clear from the evidence that I have had heard, that the Wife wanted a piece of land in Iran. However, the Husband could not or would not meet this demand and so it was agreed by the parties' that he would provide a 1,000 gold coins. That sum was a substantial amount of money in the context of his wealth. (g) When the negotiation was complete, the parties entered into a solemn marriage contract. It was drawn up by a notary and was a binding contract. After recitals which set out full details of the parties' origin and religion, the Deed sets out the marriage portion. In fact, in addition to the capital sum, it included a copy of the Quarn, a mirror and some candlesticks. In addition, the Husband agreed that if he sought a divorce against her wishes and, provided that she had not failed in the discharge of her marital duties, he would transfer half of increase in his wealth accumulated during the marriage. The Deed also provided that the Wife could divorce the Husband on 12 separately specified grounds – including "maltreatment" which would "render the pursuit of family life intolerable to the wife". It also "empowered her with the right of substitution to accept grant in case the divorce conditional on granting of the marriage portion". Although this translation is difficult to interpret per se, it has been agreed that it means that insofar as their was a re-negotiation of the marriage portion on divorce the Husband (acting as the Wife's attorney) would be able to receive such amount as she agreed to give him. (h) I have had the benefit of an expert report on the Iranian Law of divorce by Mrs Z. M. Ameli of Pars Associates – who was jointly instructed by the parties. Albeit that the report is somewhat fragmented – being a series of letters purportedly in answer to questions posed. The important findings are as follows:- (1) According to Sharia Law, as applied by Article 6 of the Iranian Civil Code, Iranian nationals remain subject to the laws of Iran in respect to matters of their personal status, even if they have gained a second nationality and are resident abroad. Thus, even though the Husband in this case has dual Iranian and British nationality and is resident here and the Wife is Iranian, they are both still subject to Iranian Law on the matter of divorce. (2) In the light of this, unless the Iranian court recognises the English divorce (which is highly unlikely) it will not enforce any order which this Court makes ancillary to it. (3) According to Article 1103 of the Iranian Civil Code, a husband and wife are bound to establish "friendly relations". This includes the obligation to remain in the same home unless to do so would detrimental to the life, health, prestige or social status of the wife. It is a concomitant part of "friendly relations" that a husband and wife have sexual intercourse, if the husband desires it. (4) According to Sharia Law, a wife becomes fully entitled to her marriage portion upon signing of the marriage contract. (5) (a) The inalienable right of the marriage portion is amplified by the expert and I quote:- " the Wife may refrain to comply with marital undertakings so long as marriage portion has not been paid. Notwithstanding the Wife's waiver of the right to collect her marriage portion prior to the start of the marital relations, she shall be fully entitled to claim and take possession of her marriage portion through executive proceedings at any time. Divorce, abandoning marital life by the Wife, being unfaithful in the marriage by the Wife, the death of the Husband, even murder and killing of the Husband by the Wife shall not shall not prejudice the Wife from having the marriage portion or seeking to enforce it through executive proceedings". (b) Even if a husband becomes bankrupt, he is still bound to pay a wife her marriage portion and, as such, it is nor provable in his bankruptcy. (c) If a wife leaves the marriage and refuses to fulfil her duties, she is still entitled to retain her marriage portion but she is not entitled to any maintenance, whilst she remains away from the matrimonial home. (d) In the case of a divorce before the marriage is consummated, a wife is only entitled to one half of the marriage portion. (6) In theory, these points apply whoever applies for the divorce and on whatever the ground. I say "in theory" because the matter is qualified by the difference between a husband's ability to obtain a Talak and a wife's ability to obtain a Khul'a. (7) In reality, a husband can obtain a Talak easily by pronouncing it 3 times before witnesses in accordance with the particular requirements of Iranian Law (as to which I have not been given details – save that I know that it can be performed at the Iranian Embassy in London). (8) On the other hand, a wife may only obtain a Khul'a provided a husband agrees or the Court finds that she has proved one of the grounds specified in her marriage contract. The burden of proof is very high and the joint expert was of the Opinion that the Wife would unable to obtain a divorce in Iran based on the particulars set out in the English petition. (9) In these circumstances, the Wife would only be able to obtain a Khul'a in Iran if the Husband agreed. (10) Article 1146 defines a Kulh'a as follows "A Kulh'a divorce occurs when the Wife obtains a divorce because of her dislike of her Husband against property which she cedes to the Husband. The property in question may consist of the original marriage portion or the monetary equivalent thereof (whether more or less than the marriage portion)…… The procedure is that the Wife files a divorce plaint for a Khul'a ….and the Husband declares his consent on condition that he receives a sum of money instead of or against the Wife's waiver of her right of claim to collect the marriage portion". (11) Thus, it is clear that if the Wife wanted a divorce in Iran she would have to negotiate in relation to the amount of the marriage portion she was prepared to forgo in order to achieve her freedom. If she considered the price too high, then as I read the Expert Report, it was/is her right to keep the entire marriage portion but she would have had to remain a married but separated woman. (12) Moreover, if she had chosen to separate from her Husband, she would not be entitled to be maintained by him. (13) There are a number of restrictions imposed on a separated (but married) woman in Iran. Apart from the obvious restrictions on remarriage – a separated woman has no right to form a new relationship as this is strictly forbidden by Article 637 of the Civil Code which proscribes parties who are not married from kissing or have coitus. (The punishment for such transgression being some 99 lashes). (14) In addition, a separated woman cannot travel freely because a Husband has the right to control his wife's travel arrangements. I understand from the expert - Mrs Ameli - that the Wife could travel freely into Iran without her Husband's permission but her departure from that country would depend on (i) his agreement or (ii) her ability to prove her Husband's residency in the United Kingdom together with her confirmation that she has not remained in Iran for a period in excess of 4 months. (15) The Husband also has to give his permission to enable a wife to renew her passport when it expires. If he fails to approve her application, then the woman will find it difficult (if not impossible) to obtain a new passport. In this event, any travel arrangements would be effectively prohibited. (16) Accordingly, the restrictions on a separated (but married) wife's future life are obvious and substantial. (i) To return to the history, once these parties had finalised the marriage portion, they married in Iran on the 30 th July 1998. By this time, the Wife had closed down her business and sold the equipment for its second hand value. Some days after the marriage the Husband left Tehran and returned to Cheshire. His new wife remained in Iran whilst she tried to acquire a UK visa. This took some 4 months and so she did not arrive in England until December 1998. (j) On arrival, she found that she had been granted a permanent visa and so she had/has the right to remain in England for as long as she wishes. It is part of the Husband's case that her primary reason for marrying him was to acquire the right of abode in the United Kingdom. I disagree. I do not consider that this was one of her motives. As it seems to me, prior to the marriage, she was settled in Iran. She did not have a record of travelling abroad – certainly she had never been to England before and had no friends or family here. In fact, she found the adjustment to life in Manchester very difficult because she felt isolated and alone. (k) On her arrival in England the Wife had a bad cold and required some 3-4 days bed rest. It seems that in the 1 st week or two from her arrival, she was fairly content. There are 2 letters in which she writes praising her new Husband and remarks that he "seems to love her". (l) The Husband, not unnaturally thought that his new wife would have sexual relations with him. She says that he wanted to make love to her immediately upon her arrival but that he agreed to wait until (1) she had settled in and (2) she felt that he loved her. He agreed to wait for a week and then asked for intercourse regularly. She says that, (although it was painful and that he was inconsiderate towards her), they had intercourse on some 10 occasions. The Husband says that the marriage was not consummated. (m) In most cases this factor would be of little relevance. However, in this case, consummation does make a difference because some 50% of the marriage portion is not payable if the marriage was not consummated. I note that the Husband did not make any allegation of non-consummation in his cross petition nor did he seek a decree of nullity. (n) The Wife says that there is proof that the marriage was consummated. She produces medical reports to show that she visited the GP to obtain contraception. She provides further evidence that on her return to Iran she was suffering from a urinary tract infection and that her hymen was broken. She states the former, is sometimes caused by intercourse and the latter, shows that she was no longer a virgin. The husband's case is that the contraception only proves that she had it mind to have intercourse and sought it prior to engaging in a physical relationship with him. Although this was not put to the Wife - in his evidence the Husband said that he thought that the Wife may have been reluctant to sleep with him because she was not a virgin when they married. He told me that virginity is still essential prerequisite to marriage in Iran and 99% of women are virgins before marriage. He said that, although he had expected to marry a virgin, he did not mind if the Wife had had a previous lover because he was more relaxed than many having lived in England for some 20 years. I do not accept his evidence on this point. I consider that he went to Iran to seek a bride because he wanted a traditional wife who was a virgin upon marriage. (o) I am satisfied after seeing and hearing the wife that she (albeit reluctantly) did have intercourse with the Husband. I doubt that it was the 10 or 11 times that she asserts but I consider that this marriage was consummated. (p) The lack of physical intimacy was nevertheless a bone of contention between the parties. They argued about it and they also had a number of other differences. For example, the Wife wanted to start a course of full time education and/or she wanted to work. The Husband was prepared to agree to part time study but no more. The Wife found the Husband's attempts to control her in this and other ways quite abhorrent. Consequently by early February 1999, after only 7 weeks of cohabitation the marriage was effectively at an end. She decided to return to Iran where her mother had been taken ill. (q) The Wife packed some 5 or 6 suitcases and flew to Tehran on the basis that she would consider whether she could agree to the Husband's conditions of marriage, namely that (i) she study on a part-time basis, (ii) she did not work and (iii) she followed her husband's wishes. (r) The Husband says that he hoped the marriage could be saved. The Wife says that she was forced out by his continually saying "If you don't like it, you can go back to Iran". (s) The Wife says that within 2 or 3 days of her return home, she told Husband's sister in law and then the Husband himself that the marriage was over. She says that she told him that he was to appoint a solicitor as she did not want direct communication with him. (t) She appointed a local attorney, claimed her marriage portion in full and placed a charge on an Iranian property in which the Husband had an inherited share. The Husband failed to engage in the Iranian proceedings. He says that his brother went to a local lawyer on his behalf and that this lawyer contacted the Wife's attorney without response. I find this explanation highly unlikely. (u) On the 16 th July 1999 the Iranian Court made an order that the Husband should pay the marriage portion. The Wife told me that she was advised that she stood little chance of securing anything in Iran without the Husband's co-operation. (v) Although she believes that she had (or may have had) good grounds for divorce in Iran, the joint expert does not agree. I find that she would not have been able to obtain a divorce in Iran on the grounds that she has placed before this Court. Thus, if she wanted an Iranian divorce, she would have had to the Husband's agreement. She did not seek a Khul'a for the very good reason that (and she appreciated this) if she did, it would lead to a renegotiation of financial matters. (w) Mr T did not engage in Iranian divorce proceedings because he appreciated that if he "talaked" the Wife, she would be entitled to retain her entire marriage portion. Moreover in these circumstances, he would have no bargaining power with which to seek to reduce the amount due by negotiation – particularly as he would not be able to prove that the marriage had not been consummated. Thus, it was a legal stand off in Iran. (x) The Wife was also advised that it would be expensive and difficult to run a piece of international litigation from Tehran. She therefore decided that she would return to England. (y) Her mother died in July 1999 and the Wife travelled to London in October. She rented a room and took some time to establish herself. Eventually, she found employment as a museum assistant earning some £900 per month. Her net wages were insufficient to meet her expenses after rent, and slowly she drifted into debt. The Delay and the Wife's indebtedness. (a) This case has been severely delayed. When the Wife arrived in England, she applied for legal aid. It took some time before it was granted whereupon she commenced proceedings for divorce in June 2000. She sought voluntary disclosure from the Husband but, when this was not forthcoming, she applied for ancillary relief in late 2000. The final hearing case was fixed for November 2001, but on that date, the District Judge transferred the case to the High Court because of (i) there was no decree nisi and (ii) its perceived complexity. The Wife then issued her claim in contract (which I consider was unnecessary – albeit that it did not, as I find, add to the delay or cost). Directions orders followed in November 2001 and February 2002. The case was then delayed until the end of the year whilst the parties waited for the joint expert to report. The case was then fixed for final Hearing in May 2003 – but the Court was unable to accommodate the case on the due date and it took some 9 months before this matter came on before me. I do not consider that either party is responsible for the delay and that fact that it is now some 5 years since the parties separated. But the result is that the Wife has lived in a legal limbo during that time. (b) The Wife did not seek periodical payments. Perhaps because, in accordance with her cultural roots, she did not consider that her husband should maintain her when she had left the former matrimonial home of her own accord. The result is that (because this case has taken so long) she has been running at an annual deficit of some £7,000 per annum. Thus, the level of her debts has increased over the last 5 years to some £37,000. Part of this sum is due to the fact that she undertook a Law conversion course – in which she was ultimately unsuccessful. She has not been criticised for this attempt to better her situation. The Parties present positions (a) The Husband has continued his life in Cheshire. He told me that he was devastated by the failure of the marriage. He says that he should not have to pay the Wife her marriage portion and his open offer is £10,000. (b) The Wife says that she does not know what her long-term position may be. She was made redundant from her job and received a small amount of redundancy money (which has been spent on living expenses). She is still living in a rented room. She has been back to Tehran on one occasion but she is fearful of travel to that country because she may find it difficult to leave again. (c) There has been no communication between the parties since 1999. The Parties' evidence . (a) The Wife. The Wife is an intelligent woman. She is much younger and brighter that her husband. I find that she negotiated a hard bargain at the date of her marriage which she now seeks to enforce in full. I also find that she was a basically honest witness. I consider that this marriage has had a great affect upon her and that although it lasted less than a year (with only 7 weeks cohabitation) it has changed her life. If she does not obtain a divorce, her long-term prospects are not good in Iran. In her original evidence, she told me that she considered a religious/sharia divorce to be very important. I accept her evidence on that point. She then sought to be recalled (which I allowed) to give additional evidence to amplify that answer. She said that whilst a religious divorce was important, she more concerned to clear her debts and have her costs paid. She therefore wanted her marriage portion paid in full. She told me that the Husband forced her out of the marriage because he told her to return to Iran. I do not accept her evidence on that point. I consider that these parties soon found that they did not gel as a couple. There were numerous arguments – about sexual intercourse or the lack of it, about the Wife wanting to study full time (as opposed to part-time as the Husband considered appropriate) and about her wish to work – in fact, on almost every point that could be imagined. She found the Husband overbearing and controlling. Whereas the Husband expected a traditional Iranian bride, this Wife wanted more freedom. Inevitably, they were both disappointed. (b) The Husband. I find that the Husband was essentially an honest witness. However, he is worldly wise and was a highly experienced businessman (some 45 years old) when he married. He knew exactly what he was doing when he entered into this marriage and he knew that the marriage portion – which is a significant sum of money - was due the moment that he signed the contract and the marriage was entered into. He does not consider that the Wife made any real effort to make this marriage work and said to me on several occasions that he did not understand why the marriage had broken down when he had provided well for the Wife. I can sympathise as to why he found the Wife's behaviour to a large degree inexplicable. He told me that he did not consider that it was "fair" that he should have to pay the marriage portion for what he described to me "as a period of 6 weeks". He does not seem to appreciate that the marriage had ramifications for the Wife which have gone far beyond that short period of time. He told me that he had not contacted the Wife in Iran because she had told him not to and I accept his evidence on that point. But it seems that his family were in contact with the Wife – indeed she says that they threatened her. Whilst I am not in a position to make a finding about that, I am clear is that each party had (and still has) a completely polarised position. The Wife wants her marriage portion because she considers it her entitlement and the Husband thinks that, as she left him, she has no right to any payment at all. The Husband's counsel told me that his client would undertake to provide this Wife with a Talak at the end of these proceedings because he would accept the findings of this court and appreciated that the parties need for a clean break. However, in his evidence, Mr T said that would give his Wife a Talak only if I made an order in the terms of his open offer. He said that he would not do so if I ordered the full amount of the marriage portion. I am of the clear view that at the end of this hearing there should be an end to proceedings in both jurisdictions. Moreover, there should be a Talak – so that both parties are free to lead wholly independent lives hereafter. The Law . (a) In this case I have 2 applications. I am not going to deal with the Part 8 application because even if I find that, in Law, the Wife is entitled to receive her marriage portion, I am able to adjust that sum using my dispositive powers under the Matrimonial Causes Act 1973. (b) I have my full powers under the terms of the Matrimonial Causes Act and I have to take into account all the factors that are set out in section 25 of that Act. I will not lengthen this Judgment by setting them all out but I fully conversant with each subsection. In this case, there are two factors that seem to me to predominate – they are the length of the marriage and the cultural background against which this case is set. (c) I have been referred to all the relevant Authorities – in particular S v S 1977 Fam 127. The essence of the cases is that in a short marriage between parties, even of a relatively young age, the Court must consider the effect of the marriage on the parties and proceed to make an order based on needs that is fair in all the circumstances. (d) The Husband has not really been affected by this marriage in terms of his ability to continue his life. He still lives in the same home. He has the same investments – albeit that he has sold his business and used the funds (less legal costs) to make alternate investments. His counsel puts his current assets (in the round) at between £250,000 - £300,000. As set out above, they have not been subject to much investigation because of the wise concession he made to avoid further disclosure. (e) On the other hand the Wife's position has been altered – she now has substantial debts – she is living in one room and she has just lost her job (and before that she had relatively poorly paid employment). If she does not secure a religious divorce, then her long-term prospects are bleak. Even if she secures a religious divorce, she will have to make a fresh start either in London or Tehran. (f) I also have to consider cultural background of this case. As Otobo – v- Otobo EWCA 2002 - albeit a case which concerned forum conveniens – makes clear, a factor when carrying out the Court's function is to have regard to the parties' cultural mores and I quote from the Headnote. "When carrying out the exercise under s. 25 of the Matrimonial Causes Act 1973 in a case involving a family with only a secondary attachment to the English jurisdiction and culture, an English judge should give due weight to the primary cultural factors, and not ignore the differential between what the wife might anticipate from a determination in England as opposed to a determination in the alternative jurisdiction, including that as one of 'the circumstances of the case'. In consequence, an ancillary relief trial in England would be more complex and expensive in such a case than it would be in a conventional case between British subjects" (g) It is my view that this rationale applies to an application for full ancillary relief. Thus I will take into account the agreement which the parties reached and determine how the Iranian Court would have been wont to deal with this case. i. If the Husband had divorced the Wife by way of Talak or failed to give her a divorce at all, then, in my view, in Iran she would be entitled to retain the whole of her marriage portion. ii. If the Wife wanted a divorce, because she does not have sufficient grounds in Iran, she would have been bound to enter into a negotiation in order to agree what percentage of her marriage portion, if any, she would sacrifice for her freedom. (h) I take these matters fully into account. (i) This was not a lengthy marriage. That it failed was due to a clash of personalities rather than the fault or default of either party. It was short, but it has had an effect on the Wife because the parties failed to deal with the case in Iran. It has become a protracted affair in England through no fault of either party. (j) Overall I consider an overwhelming point of importance is the Wife's needs. I do not consider that it would be fair to make the Husband pay the full amount of the marriage portion in this case. A sum of £60,000, in the context of the Husband's wealth, in relation to a marriage that lasted only a few months (with a period of 7 weeks cohabitation) would not be just. But if she receives less, then the Wife must be able to live independently hereafter. I remind myself of the case of White – v White and of the overarching objective to be fair to both parties in the context of the facts of this case. I am of view that the proper lump sum is £35,000 (provided the Wife has a religious divorce and is therefore wholly independent). This sum is to be paid within 28 days. On the basis the Wife must drop all proceedings in Iran and release the charge on the Husband's property. This order is predicated on the basis that the Husband grants the Wife a Talak. If he does not do so, then I am of the clear view that the Law of Iran entitles this Wife to the full amount of her marriage portion. Thus, if the Husband fails to give the Wife a Talak within 3 months from today, it is only right that she should be entitled to the whole of her marriage portion – that is a total of £60,000. Thus, a further £25,000 will become due and payable in the event that the Husband fails to grant her a Talak. This contingent order is in line with the case of Brett v Brett 1969 1 AER 1007, by which it was decided that the court had jurisdiction to make an order for additional capital in circumstances where a wife would be disadvantaged by the failure of a husband to grant a religious divorce. For the cultural reasons which I have expressed in detail in this Judgment, it is fair that the Wife should receive the full amount of her marriage portion if the Husband fails to give her a Talak because that is the sum that she would have received from the Courts of her native country in such circumstances. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII