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[2004] UKSSCSC CG_2581_2001 (17 March 2004)

 


CG/2581/2001

Decision

1. This appeal by the claimant succeeds. In accordance with the provisions of section 14(8)(a) of the Social Security Act 1998 I set aside the decision of the Birmingham tribunal made on 6^th February 2001 under reference S/44/229/1998/00385. I substitute my own decision. This is to the effect that, for the purposes of her claim to widow's benefit and related and successor benefits, the claimant can be accepted as having been the wife of and validly and monogamously married to the deceased man named in the decision made by the adjudication officer in this case. I remit to the Secretary of State questions relating to the calculation and payment of any arrears.

Background and Proceedings

2. I have been greatly assisted in this matter by lengthy written submissions made over a protracted period of time on behalf of the claimant and to those of 24^th March 2003 and 9^th October 2003 made on behalf of the Secretary of State. The latter incorporates an opinion from Ian D Edge of counsel, which makes submissions in relation to English law which by and large coincide with my own conclusions, but which also puts forward expert evidence in relation to Islamic law as recognised in the Yemen. Mr Edge lectures at SOAS and is the Founding Director of the Centre of Islamic and Middle East Law. He teaches courses in which the recognition of foreign and Islamic divorces is an important topic. I accept his expert evidence as incorporated in particular in paragraphs 3(viii) and 4 (ii and iii).
3. On 15^th July 1996 Mr A died of a heart attack in the Yemen at the age of 64. He had been born on 5^th January 1932 and he came to the United Kingdom in 1955. He worked and paid national insurance contributions in the United Kingdom for many years, interspersed with periods out of the country. (It appears that he was in the Yemen from 6^th February 1967 to 28^th April 1968 and from February 1973 to May 1974). In the 1965-1966 tax year he was paid or credited with 49 weeks national insurance contributions and was paid benefit for three spells. In the 1966-1967 tax year he was paid or credited with 47 weeks national insurance contributions. These records appear on pages 17-18 of the bundle of papers before me and in the tribunal's findings. He finally left the United Kingdom in 1985.
4. On 8^th September 1997 the claimant was interviewed in the Yemen, with the aid of an interpreter, by an official of the Department working as a pensions liaison officer, and affixed her finger or thumb print to a written record of the interview and to a claim for widow's benefit based on the contributions of the deceased. She indicated that she herself was born on 6^th June 1942, had never lived in the United Kingdom, that she had married the deceased when he was 30 years old and that he had been married before to a woman from the Yemen but had divorced his previous wife. The claimant did not know the previous wife's name or which village she came from, how old the deceased was when he had married her, whether they had one child or three children (although she was sure that they had one living in the USA), when and how they had divorced or how long the deceased had been divorced before marrying the claimant. She said that she had a married daughter, that she was pregnant when the deceased had returned to the United Kingdom 7 months after marrying her, that she was married in the deceased's village, that her parents and the deceased's mother attended the wedding, and that she did not know what work the deceased had done in the United Kingdom.
5. On 2^nd February 1998 the adjudication officer (whose functions have since been taken over by the Secretary of State) decided that the claimant had no entitlement to widow's benefit. The ground given was that the marriage had been celebrated under a law which permitted polygamy and was not in fact monogamous at the time. I find this reasoning odd. The only evidence of any kind at that stage came from what the claimant had said and it is not clear on what basis it had simply been accepted that the deceased had been married before but had not been divorced. For my part I would have doubted that it had been sufficiently well established at that stage that the claimant herself had been married to the deceased. However, the parties now seem to accept that the claimant was married to Mr A, that the marriage was one that was recognised by Yemeni law, that Mr A had been married before, and that Mr A had divorced his first wife for the purposes of Yemeni law before marrying the claimant. Notwithstanding various comments below (which I make for the sake of completeness) I do not seek to disturb those agreed facts, which the tribunal accepted. I also assume, because it has never been suggested to the contrary, that Mr A's first wife never resided in the United Kingdom. The issue is whether the divorce is effective for the purposes of English law and for the claim.
6. On 16^th April 1998 the claimant appealed to the tribunal against the decision of the adjudication officer. On 14^th January 1999 the Newcastle tribunal considered the appeal in the absence of the claimant or anyone representing her. It confirmed the decision of the adjudication officer, adopting the same reasoning. On 13^th April 1999 the claimant applied to have that decision set aside on the basis that evidence had been sent that had not been considered by the tribunal. A bundle of documents was sent (or sent again) in June 2000. On 25^th October 2000 the District Chairman of the tribunal set aside the decision on 14^th January 1999 and after protracted submissions had been made a fresh hearing was arranged for 6^th February 2001.
7. The bundle of papers before me includes a copy of a document written in Arabic (reproduced on pages 34 and 35). There is also a document on pages 32 to 33 which appears to be a translation into English of that document and which has been prepared by a translation bureau in the Yemen. A submission on behalf of the claimant states that this document was prepared for the purposes of determining inheritance rights after the death of Mr A.
8. The document is headed "Primary Court Judgement" and is stated to be signed and sealed by the Judge of Bani Al-Hareth Primary court on Sunday 2^nd of Dhul Qi'da 1418 AH, corresponding to 29^th February 1998. Of course, there was no such date as 29^th February 1998 but the Arabic date given is the equivalent of 1^st March 1998 (see page 309 of the bundle of papers). I also observe that if the document was created in 1998, then it did not exist at the time of the claimant's interview on 8^th September 1997. This is significant because the claimant's representative has spent pages and pages complaining that the claimant was not asked for documentary evidence at the interview. In a submission to the tribunal the Secretary of State also pointed out that by the time of the hearing in the Yemen the claimant had found out a great deal of information that she knew nothing about at the interview.
9. The document refers to a case brought by the claimant, claiming that she had married Mr A on 14^th January 1967 "after her above husband divorced his former first wife … earlier than April 1966". Mr A had died "limiting his inheritance to his claiming wife [the claimant], his daughter from her … and his son from his former first wife". Her claim was contested and she produced three witnesses (whose names and details are given) who "unanimously testified in support of the implications of the claim…. Therefore, according to the claim and the evidences above, the Court adjudicated that the claim above is correct and true".
10. A slightly different translation prepared for the Secretary of State is provided on page 75A. The translator seems to assume that the date of the document was 28^th February on the basis that 1998 was not a leap year. The date of the claimant's marriage is there given as 12^th January 1967 (rather than 14^th) and the date of the divorce as being in April 1966 (rather than before April 1966). I accept Mr Edge's translation to the effect that the court found that Mr A declared talaq against his first wife on a previous or former date in April 1996 (page 311). The talaq would be final after the idda or waiting period of 3 months from its declaration. It is not clear from this judgment where the declaration was made, since it could have been made by an attorney. However, the court dealing with the inheritance claim regarded the talaq as a valid divorce in Yemeni law.
11. I am bound to say that, even accepting this document at face value in any translation, it is not at all clear what this evidence proves by itself except that the claimant won her claim that the inheritance was limited (as a matter of Yemeni law) as she had argued and that Mr A had validly divorced his first wife for the purposes of Yemeni law. (The tribunal subsequently found as a matter of fact that in the Yemen a divorced wife would have no claim to her ex-husband's estate.) The findings (as opposed to the claims) are not specific as to dates and processes, and I do not know what rules of evidence and procedure or laws of inheritance were applied. In particular, no details are given of how and where the divorce took place (except that it was in April 1966) or where Mr A was domiciled or living at the time that it took place. The document does not seem to me to be the equivalent of a decree of divorce and/or a marriage certificate. (I also observe that, although a tribunal should pay heed to findings of fact by another court, it is not bound by them, whether that court sits in England, elsewhere in the United Kingdom, or elsewhere in the world).
12. The tribunal finally considered the matter on 6^th February 2001. Both parties were represented. The tribunal confirmed the decision of the Secretary of State. It found that (during the relevant period) Mr A did not leave the United Kingdom until 6^th February 1967, although the claimant says that she married him in January 1967. However, it did not consider this to be fatal to the claim. It found that (if the divorce was in April 1966) Mr A was in the United Kingdom at the time. Divorce could nevertheless have been by way of talaq (as I indicate above), although it also found that Mr A did not have to divorce his first wife for a valid marriage to a second wife to be recognised in the Yemen. The tribunal found that on the basis that Mr A was habitually resident in the United Kingdom for the period of 12 months prior to the date of the divorce and that the divorce was "otherwise than by means of proceedings", the divorce could not be recognised for the purposes of the claim, which therefore failed. However, as I explain below, the tribunal went wrong in law by relying on the provisions of the Family Law Act 1986.
13. On 18^th June 2001 a chairman of the tribunal refused to give the claimant leave to appeal to the Social Security Commissioner. She now appeals by my leave granted on 15^th October 2001. The Secretary of State originally opposed the appeal and supported the decision of the tribunal. As the proceedings have developed and I have raised more and more queries, the Secretary of State has gradually changed his position, becoming more supportive of the claimant's case.

The Relevant Law on Widowhood

14. Section 38 of the Social Security Contributions and Benefits Act 1992 provides that, subject to conditions which have yet to be considered in this case, "a woman who has been widowed shall be entitled to a widow's pension…".
15. It is well established that a woman cannot be a man's widow unless she was married to him at the time of his death. A tribunal of Commissioners decided many years ago that, for the purposes of entitlement to widow's benefit, a widow is a woman who was:

"… married to her husband by a marriage in the sense in which that term is used in the law of Great Britain, that is to say – "the voluntary union for life of one man and one woman to the exclusion of all others" … ".

16. Although there has been subsequent statutory provision in relation to potentially polygamous marriages (with which I deal below) that is the basic principle which has always been accepted by the Commissioners and the courts (see R (G) 18/52 paragraph 19 and eg R (G) 1/70 paragraph 7).

Recognition of Divorce

17. It follows from the above that if Mr A was (or was regarded by English law as being) still married to his first wife when he married the claimant then his marriage to the claimant would not be recognised for the purposes of her entitlement to widow's benefit. If Mr A was not still married to his first wife at the time when he married the claimant, then the claimant would be recognised as his widow, even if the marriage was celebrated under a law which permits polygamy, for so long as the marriage was in fact monogamous (section 5(1) of the Private International Law (Miscellaneous Provisions) Act 1995 and regulations 1 and 2 of the Social Security and Family Allowances (Polygamous Marriages) Regulations 1975). In this case there is no evidence that, and it has not been suggested that, Mr A married again after his marriage to the claimant.
18. The Family Law Act 1986 came fully into effect on 4^th April 1988 and was thus in effect at the date of claim. By virtue of section 52(1) (to which sections 44(2) and 51 are made subject) it has retrospective effect in respect of the recognition of overseas divorces (that is, obtained in a country outside the British Islands). By virtue of section 45 of the Act the validity of an overseas divorce is to be recognised in the United Kingdom if, and only if, it is entitled to recognition by virtue of sections 46 to 49 of the 1986 Act or by virtue of any other Act.
19. Section 46(1) of the 1986 Act provides for recognition of an overseas divorce obtained by means of proceedings (my emphasis) 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.

20. Section 46(2) of the 1986 Act provides for recognition of an overseas divorce obtained otherwise than by means of proceedings (my emphasis) if:

(a) The divorce … is effective under the law of the country in which it was obtained: and

(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 laws 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.

The relevant date for section 46(1) is the date of the commencement of the proceedings and for section 46(2) it is the date on which the divorce … was obtained (section 46(3)).

21. The first question to be answered here is whether the divorce of Mr A from his first wife, if it took place, was obtained by means of proceedings. Under section 54(1) of the Act, "proceedings" are defined as meaning "judicial or other proceedings". In Quazi -v- Quazi [1979] 3 All ER 897 the House of Lords held that the phrase "other proceedings" included all proceedings for divorce, other than judicial proceedings, which were legally effective in the country where they were taken.
22. In the present case, in view of the comments that I have made above, and what I say next, I am not persuaded that there were any kind of "proceedings" leading to the divorce of Mr A from his first wife. There is no evidence as to how this marriage was terminated. Neither the claimant nor her representative can give direct evidence on this matter. Indeed the representative has indicated that he understands or uses the word "talak" to mean "nothing more or less than divorce" whether or not there were proceedings (page 152). The representative has argued that there would have been notification to the village chairman – in writing if Mr A was out of the country (pages 156 – 157) but even if such a procedure exists or existed at the time, there is not evidence that it was complied with. Accordingly I find that the claimant cannot rely on the provisions of section 46(1) of the 1986 Act.
23. Can she rely on section 46(2)? I take the view that she cannot, because Mr A was domiciled either in the United Kingdom or in the Yemen (I do not have to decide which for these purposes) and not in any other country, and had been habitually resident in the United Kingdom throughout the period of one year immediately preceding the relevant date. This is shown by his contribution and claims records to which I have referred above.
24. Section 45(b) of the 1986 Act provides that the validity of a divorce which is not entitled to recognition by virtue of sections 46 to 49 of the 1986 Act is nevertheless entitled to recognition if it is so entitled by virtue of any other enactment. Further, section 52 provides, so far as is relevant, that:

52(4) The validity of any divorce … mentioned in subsection (5) below shall be recognised in the United Kingdom whether or not it is entitled to recognition by virtue of any of the foregoing provisions of this Part.

(5) The divorces … referred to in subsection (4) above are-

…

(b) an overseas divorce which was recognised as valid under the Recognition of Divorce and Legal Separations Act 1971 and was not affected by section 16(2) of the Domicile and Matrimonial Proceedings Act 1973 (proceedings otherwise than in a court of law where both parties resident in the United Kingdom).

25. The claimant's representative has sought to rely on the provisions of section 16 of the Domicile and Matrimonial Proceedings Act 1973, passed some years after the apparent date of the divorce. Section 16(1) does not apply to overseas divorces. Section 16(2) of the 1973 Act is not relevant in this case because it appears that Mr A's first wife never resided in the United Kingdom. Section 16(3) of the 1973 Act provides that section 16 does not affect the validity of any divorce obtained before its coming into force and "recognised as valid under rules of law formerly applicable. That provision was repealed by the 1986 Act but its effect was preserved by section 45(b) of the 1986 Act.
26. The remaining statute to consider is the Recognition of Divorces and Legal Separations Act 1971, which was intended to codify and amend the common law rules, taking into account recommendations of the Law Commission and the 1970 Hague Convention on the Recognition of Divorces and Legal Separations. Section 2 of the 1971 Act provides:

2. Sections 3 to 5 of this Act shall have effect, subject to section 8 of this Act, as respects the recognition in Great Britain of the validity of overseas divorces … [ie] which –

(a) have been obtained by means of judicial or other proceedings (my emphasis) in any country outside the British Isles; and

(b) are effective under the laws of that country.

27. So far as is relevant, section 3 provides:

3(1) The validity of an overseas divorce … shall be recognised if, at the date of the institution of proceedings in the country in which it was obtained –

(a) either spouse was habitually resident in that country; or

(b) either spouse was a national that country.

Section 4 applies where there have been cross-proceedings or a judicial separation and section 5 provides for the acceptance of findings of fact in the proceedings by means of which the divorce was obtained. Section 8 provides for exemption from recognition but there is no suggestion that any part of section 8 can apply to the facts of this case.

28. Mr A's wife was habitually resident in the Yemen and I am have accepted that, assuming the divorce took place, it was effective under the laws of that country. The issue remaining under sections 2 to 5 is whether the divorce was obtained by means of proceedings. I have explained above why I conclude that it was not, but the matter requires some further discussion.
29. The Secretary of State has drawn attention to the suggestion by Professor MDA Freeman in his commentary on the 1971 Act (at page 208) that English law might recognise any divorce "however minimal the proceedings and even where there are none" provided the state of origin regards such divorce as effective. I cannot accept this. If that were so, section 2(a) would have no meaning other than what is in section 2(b), and it would not be possible to apply section 5 (acceptance of facts found in proceedings) where there were no proceedings. In Chaudhary -v- Chaudhary 1984 3 All ER 1017 the Court of Appeal took the view that the phrase "judicial or other proceedings" in section 2(a) of the 1971 Act "must be given a construction which restricts recognition to a narrower category of divorce than all divorces obtained by any means whatsoever which are effective by the law of the country in which the divorce was obtained" (per Lord Justice Cumming-Bruce at page 1028f. See also Lord Justice Oliver at page 1030f).
30. That leaves the provisions of section 6 of the 1971 Act. As originally enacted this stated:

6. This Act is without prejudice to the recognition of the validity of divorces and legal separations obtained outside the British Isles –

(a) by virtue of any rule of law relating to divorces or legal separations obtained in the country of the spouses' domicile …

(b) by virtue of any enactment other than this Act;

but, save as aforesaid, no such divorce or legal separations shall be recognised as valid in Great Britain except as provided in this Act.

31. I am not aware of any other previous legislation that I must consider and so the position under the original version of section 6 depends on two matters. The first is the establishment of the domicile of both Mr A and his first wife at the time of the divorce. The second is the identification of the common law rules of recognition. There is no doubt that at the time of the divorce Mr A's first wife was domiciled in the Yemen. What about Mr A? Although he lived, worked and contributed in the United Kingdom for lengthy periods, he retuned to the Yemen to marry and then to retire. On the face of it, this suggests that (in Mr Edge's words) "he never intended to make England his permanent home". His domicile at birth was the Yemen and I find that this remained his continuing domicile of choice throughout his life. The tribunal also took that view.
32. Until 1971 the common law position on recognition of divorces was based mainly on the common domicile of the parties to the marriage being dissolved. This rule, even at common law, became more liberal in terms of the connection between the parties to the marriage and the place of divorce, but it is not necessary in this case to go that far. The basic rule suffices. (These matters are reviewed in Indyka –v- Indyka [1969] 1 AC 53). I must therefore conclude that whether the talaq was declared in England or in the Yemen, at the time of declaration it would have been recognised at common law on the basis that both parties were domiciled in the Yemen. Accordingly, Mr A was not already married at the time that he married the claimant and she is entitled to be regarded as his widow for the current purposes.

H. Levenson

Commissioner

17^th March 2004