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[2005] UKSSCSC CP_3108_2004 (25 April 2005)

DECISION OF THE SOCIAL SECURITY COMMISSIONER
1. My decision is given under section 14(8)(a)(ii) of the Social Security Act 1998. It is:

I SET ASIDE the decision of the Birmingham appeal tribunal, held on 5 December 2003 under reference U/04/024/2003/02777, because it is erroneous in point of law.

I make findings of fact and give the decision appropriate in the light of them. Those facts are set out in the course of my reasoning below.

My DECISION is that the claimant was the monogamous wife of Mohammed and she has been entitled to a retirement pension on and from 21 January 1994, the day from which her entitlement was terminated. Any sum already paid in respect of the period covered by this decision must be offset against arrears of entitlement and, to the extent that the sum does not exceed the arrears, treated as made on account of them: see Case 1 under regulation 5 of the Social Security (Payments on account, Overpayments and Recovery) Regulations 1988.

2. Under regulation 5(2)(a) of the Social Security Commissioners (Procedure) Regulations 1999, I abridge the time for appealing to the Court of Appeal to one month from the date on which this decision is issued to the parties. In fixing the period I have taken into account the claimant's age, the time that these proceedings have already taken and the distress which they have caused to her and her children.

The issue

3. This case concerns the entitlement of the claimant (Jamila) to a retirement pension. Her entitlement depends on whether, for the purposes of British law, she is the only wife of her (now deceased) husband (Mohammed).

How the issue arises

4. I will need to refer to some of the facts in detail later, but their broad outline shows how the issue arises. Mohammed was previously married to Diwan. When alive, Mohammed said that he had divorced Diwan by a bare talaq in 1961 before he married Jamila later in the same year. He then heard nothing more of Diwan until 1996 when she made a claim for a retirement pension. Her claim was refused by the adjudication officer and by the social security appeal tribunal, but Mr Commissioner Williams decided in her favour in CP/3990/1998. The basis of his decision was that the divorce from Diwan was not recognised as valid under section 46 of the Family Law Act 1986. This in turn was based on his conclusion that Mohammed was, at the time of the divorce, domiciled in England and Wales. He expressly stated that his decision did not affect Jamila's entitlement to a pension. Nonetheless, it is no surprise that the Secretary of State's decision-maker then terminated the award of Jamila's pension on the basis that her marriage was not valid, Mohammed still being married at the time it was contracted. On appeal, an appeal tribunal restored Jamila's pension, finding that the divorce was valid as Mohammed was domiciled in Pakistan at the time. Hence his marriage to Jamila was also valid.

The oral hearing

5. Mr Commissioner Lloyd-Davies gave the Secretary of State leave to appeal against the tribunal's decision. He directed an oral hearing at the claimant's request. I took the oral hearing at the Commissioner's court in London on 11 March 2005, Mr Lloyd-Davies being indisposed. The Secretary of State was represented by Miss Das of the Office of the Solicitor to the Department for Work and Pensions. Jamila attended, accompanied by her two sons, Nahid and Nadeem, who interpreted and spoke for her.
6. I am grateful to Jamila for her evidence and to Nahid and Nadeem for their evidence and submissions on behalf of their mother. I am also grateful to Miss Das for her submissions so far as they went, although she would have been more helpful if she had been willing to engage the legal possibilities beyond what she called her 'client's instructions'. I was surprised to hear her refer to instructions. It has been the tradition that the Secretary of State's representatives, although not taking a neutral position, have always been prepared to assist Commissioners in the exercise of their inquisitorial approach to cases. I hope that this is not the harbinger of a new approach.

How the tribunal went wrong in law

7. I deal with this briefly. I consider that the tribunal went wrong in law by failing to consider the full range of legal issues that arose in this case. That is not a criticism of the chairman, nor does it mean that the tribunal did not come to the correct conclusion. It does, though, mean that I must set aside the tribunal's decision and reconsider all aspects of the case, both fact and law.

The conflict of laws

8. This case depends on the area of law known as the conflict of laws or private international law. This arises when the parties or the circumstances of the case have connections with different legal jurisdictions. In this case, there are connections with Pakistan and England. The marriage ceremonies and the divorce (if there was one) took place in Pakistan, while Mohammed lived in England before 1960 and after 1962, and both Diwan and Jamila claimed a retirement pension in this country.

Issues of fact

9. I begin by considering some issues of fact. Specifically, I must decide: (a) whether Mohammed went through a form of divorce from Diwan; (b) where the parties were domiciled and habitually resident around 1961; (c) where Mohammed and Diwan intended to set up their matrimonial home at the time of their marriage; and (d) if the divorce was valid under the law of Pakistan.
10. Before addressing these questions, I need to explain the concepts of domicile and habitual residence.

Domicile

11. This concept is used in the conflict of laws. It defines a person's connection with a particular legal jurisdiction. Everyone has a domicile. A person's domicile of origin is acquired at birth. However, it is possible to change domicile by acquiring a domicile of choice. The evidence must be particularly persuasive to show that a domicile of choice has displaced the domicile of origin. There are two elements that must be shown in order to prove that a domicile of choice has been acquired. First, the person must have taken up residence in the country concerned. Second, the person must have the necessary intention. It is not necessary that the person should form an intention about domicile. Most people live their whole lives without even knowing that such a thing exists. The intention that has to be shown relates to the permanence of the person's residence in the country concerned. There may be statements made by the person about this. But for the most part the intention has to be inferred from the person's actions and the circumstances of the case. In order to show that a person has acquired a domicile of choice, it is necessary to show that the person had settled there with the intention "to make his home in the new country until the end of his days unless and until something happens to change his mind": see the judgment of Lord Justice Buckley in Inland Revenue Commissioners v Bullock [1976] 1 WLR 1178 at page 1185.
12. I have to determine the domicile of Diwan, Jamila and Mohammed. The domicile of both Diwan and Jamila is easy to identify; that of Mohammed is more difficult.
13. As Diwan was married to Mohammed, she had the same domicile as he did. This means that if he was domiciled in England, so was she, even though she had never set foot here. The rule that a wife had the same domicile as her husband was abolished by section 1 of the Domicile and Matrimonial Proceedings Act 1973 with effect from 1 January 1974. However, the rule applied in 1961.
14. Jamila was born in Pakistan and there is no evidence that she had ever left before her marriage. In those circumstances, her domicile of origin was in Pakistan and she could not have acquired a domicile of choice anywhere else.
15. Mohammed was born in Pakistan and had a domicile of origin there. Mr Commissioner Williams found that he had acquired a domicile of choice here at the time of the marriage. I have come to the conclusion that he retained his domicile of origin at the date of his marriage to Jamila and that this is where they intended to set up their matrimonial home. I explain why below.

Habitual residence

16. This is another concept used in the conflict of laws to define a person's connection with a jurisdiction. It is now preferred, at least in international and domestic legislation, to domicile. Habitual residence in a jurisdiction is established when someone resides there voluntarily as part of the regular order of life for the time being, whether that be long-term or short-term. It can only be established after an appreciable period of residence, but it is possible to lose or abandon habitual residence in a day.

The evidence - divorce

17. There are two issues. Was there a form of divorce? And if there was, was it valid under the law of Pakistan?

Was there a divorce?

18. The following evidence supports the conclusion that a divorce took place. (a) Mohammed said he divorced Diwan in June 1961. (b) He did not mention the previous marriage on his marriage certificate with Jamila. (c) He swore an affidavit on 1 December 1961 saying that he had divorced Diwan. There is a certified translation of that affidavit in the papers. I have also seen the original document. I am not an expert in document examination, but it has the appearance of age consistent with it having been sworn in 1961. The original has been returned to the claimant, but a copy has been added to the Commissioner's file. (d) There was no contact between with Diwan from 1961 to 1996. (e) The pensions liaison officer who interviewed Diwan was not impressed by her evidence about the divorce.
19. The following evidence supports the conclusion that a divorce did not take place. (a) Diwan says that she knows nothing of a divorce. (b) The voters' list for March 1987 shows Diwan as the wife of Mohammed. (c) The date of birth of Mohammed's last child by Diwan shows that they had a sexual relationship in late 1960 or early 1961.
20. I prefer the evidence that shows that a divorce took place. I am particularly influenced by the absence of any evidence of contact with Diwan between 1961 and 1996. This is hardly compatible with a surviving marriage. I am also impressed by the opinion of the experienced pensions liaison officer who actually interviewed Diwan. The 1961 affidavit does on its face appear to be contemporaneous. I have not, though, relied on this exclusively, as I am not competent to determine whether or not it is what it appears to be.

Was the divorce valid under the law of Pakistan?

21. The state of the law of a foreign country is a matter of fact, not law. There is evidence in the legal advice beginning on page 84. This shows that the Muslim Family Law Ordinance 1961 did not apply to the province in which the divorce took place. According to the advice, the divorce would have taken effect after 90 days, in September 1961. There is also evidence in counsel's opinion for Diwan that the lack of writing and notice would not invalid the divorce. Mohammed in his statement says that there was no Union Council at the time.
22. On that evidence, I find that the divorce was effective in the law of Pakistan as applicable to the place of the divorce.

The evidence – domicile and habitual residence

23. Miss Das argued that the evidence was overwhelming in favour of the Secretary of State that in 1961 Mohammed had acquired a domicile of choice in this country. I disagree. There is some evidence to support the Secretary of State's decision, but it is not particularly persuasive and it is certainly not overwhelming.

Mohammed's statement

24. Miss Das referred to the statement made by Mohammed to a visiting officer in 1997. This statement was made after Diwan had claimed a retirement pension. Miss Das referred to both the content and the fluency of the statement.
25. I deal first with the fluency of the statement. It is correct that it is succinct, clear, coherent and fluent. However, as I pointed out to Miss Das, that is attributable not to Mohammed but to the visiting officer. I have no evidence on how this statement was composed, but I am aware of the standard practice and it is reasonable to infer that it was followed in this case. Indeed, I am sure that it was followed. What happened is that the visiting officer arrived, explained the purpose of the visit and the information that was required. There then followed a series of questions and answers at the end of which the officer distilled the relevant information into the statement that Mohammed signed. He signed it because it contained what he wanted to say, but it is wrong to attribute its form and fluency to him.
26. I now come to the content of the statement. It is true that Mohammed said: 'I returned to Pakistan in 1960/62 to arrange divorce and marriage. I always intended to come back to Britain.' I have no reason to doubt his honesty. But that does not mean that his recollection is reliable. The statement was made by an elderly ill man trying with the benefit of hindsight to recall his intentions of nearly 40 years earlier and to summarise them for a short statement. Those are not circumstances that are conducive to reliability. There is evidence from Nahid which I find more persuasive. His evidence was more detailed. It was also based on what his father had said at times that were much closer to 1961 than 1997 when Mohammed made his statement.

The contribution record

27. This shows that Mohammed was in the United Kingdom for the best part of the tax years from 1953-1954 to 1959-1960. He paid contributions for at least 50 weeks in all but two of those years. He paid few contributions in 1960-1961 and 1961-1962. He then paid contributions for the whole of every tax year from 1963-1964 to 1972-1974.
28. This record shows where Mohammed was. It confirms the other evidence on that. What it does not show is what his intentions for the future were. It is possible to infer intentions from actions. But I have to bear in mind that (a) there must be particularly persuasive evidence to show that a domicile of choice has replaced a domicile of origin and (b) the intention must be that set out by Lord Justice Buckley in IRC v Bullock.

Nahid's evidence

29. Nahid told me that his father had been something of a rebel. He ran away from home, joined the merchant navy and worked in a number of different countries. Despite this, he always saw Pakistan as his home and wished to be buried there, which he was. In the 1950s, his intentions were directed towards finding work and earning a decent living to make life better for himself and his family. On his marriage to Jamila, relationships with the rest of his family were difficult, so his father gave him a piece of land (described as twice the size of the Commissioners' court room) on which he built a home. He stayed in Pakistan until financial circumstances made him return to England, eventually realising that his wife should join him. He encouraged his children to have connections with the language, culture and life of Pakistan and for a while they went to live there. In their early years, he saw their future as in Pakistan. He wanted them to learn appropriate trades and skills. It was only when he realised that his children were growing up and that they saw England as their home that he realised that England would be their base.
30. I found this evidence persuasive. It conveyed a picture of a man torn by a conflict between, on the one hand, his loyalties and ties to his home land and, on the other, the financial realities and the wishes of his children as they grew up. This does not suggest that Mohammed had formed the necessary intention to establish a domicile of choice in England until late in his life and certainly well after 1961.

The evidence to the tribunal

31. Miss Das also referred to the evidence of what she called home ownership given by Jamila at the tribunal hearing and accepted by the tribunal. As far as the tribunal's findings are concerned, it is correct that at one point the tribunal referred to ownership and might be read as suggesting that Mohammed may have retained ownership of a home here while in Pakistan from 1960 to 1962. However, these findings (if that is what they were) are not supported by the evidence given at the hearing. This is not worded in terms of ownership. What Jamila told the tribunal was that Mohammed had his own home before 1960 and acquired his own home on his return to England. There is no mention of ownership and I doubt whether the claimant had in mind, when giving evidence, the different forms of English tenure. As I put to Miss Das, all the evidence comes to is this. Mohammed had his own home before leaving England in 1960 and obtained one when he returned. There is no evidence of ownership. Mohammed had to live somewhere. All that Jamila was saying was that he had his own home, as opposed to living with someone else or in lodgings.
32. I also have the evidence of Nahid at the hearing. He told me that the family's friends all lived in council accommodation, which was cheaper, and that the first property he remembered his father owning was bought when he was 14 (he is now 37). I accept that evidence, which is entirely consistent with what Jamila told the tribunal.

Conclusions

33. I deal first with Mohammed's domicile, then with the intended matrimonial home, and finally with his habitual residence.
34. Miss Das did not challenge Nahid's evidence and I found it persuasive. It conveyed a picture that I found entirely plausible. Mohammed had conflicting loyalties. On the one hand, he was drawn to Pakistan as the land of his birth. He wanted to be, and was, buried there. He retained his property there. He wanted his children to know what life was like there. He hoped, at least initially, to be able to return there. On the other hand, he was something of a rebel when he was young. He wanted to, and did, travel. He was also forced to accept the financial realities that he could earn more money and provide better for his family in England than he could in Pakistan. He also discovered that this is where his children wanted to be.
35. Mohammed began with a domicile of origin in Pakistan. His travels showed a weakening of his links with that jurisdiction, but not a sufficient connection with any country to acquire a domicile of choice there. The only realistic possibility was a domicile of choice in England. His contribution record certainly shows a period of residence here. However, on the basis of Nahid's evidence on Mohammed's hopes and intentions, he did not have the necessary permanence of mental connection to acquire a domicile of choice here before his marriage to Jamila. So, I find, as the tribunal did, that in 1961 Mohammed's domicile was still that of his origin in Pakistan.
36. I now come to the intended matrimonial home. Again, I was persuaded by Nahid's evidence. Mohammed certainly remained in Pakistan for a while after his marriage to Jamila. That is not of itself decisive. It is natural that he would not wish immediately to abandon his new wife. But, on Nahid's evidence, his intentions were more long term. He was sufficiently concerned about relations with the rest of the family to secure land and build a home for himself and his wife separate from the rest of his family. That suggests an intention at that time to have a family base in Pakistan, even if he had to travel in order to earn a better living than he could at home. Also on Nahid's evidence, Mohammed eventually returned to England for financial reasons. It may be that with the benefit of hindsight, as Mohammed realised in 1997, there had always been an inevitability about his connections with England. However, that is not the same as his intentions at the time. I accept Nahid's evidence that he was torn between his loyalty and affection for Pakistan, his desire to get away and his financial needs. At the time of the marriage to Jamila, the evidence suggests that his immediate intentions were directed towards Pakistan and that circumstances conspired to send him on his travels again. So, I find that at the time of the marriage, the intended matrimonial home was to be in Pakistan.
37. As regards Mohammed's habitual residence at the time of his divorce and marriage, the contribution record shows that he lived in the United Kingdom from mid-1953. I am prepared to deal with the case on the assumption that he was habitually resident in the United Kingdom at least by the end of the 1950s. However, it is possible to lose habitual residence in a day. Given my conclusion on the intended matrimonial home of the couple, it must follow that Mohammed abandoned his habitual residence on returning to Pakistan for the divorce and remarriage. At that time, he was not habitually resident in the United Kingdom and, as far as the evidence shows, had not established habitual residence anywhere.

Incidental question

38. I come now to the law and immediately encounter the problem of the incidental question. An incidental question arises when the same question receives conflicting answers depending on the law that has priority in a particular case. The effectiveness of a divorce is an example. Assume that X has divorced and remarried. The validity of that marriage is raised in country Y. Under Y's conflict of law rules, X's capacity to marry is governed by the law of country Z, which recognises the divorce. So under Z's law, X had capacity to remarry. But suppose that the recognition of divorces is governed not by the law of country Z, but the law of country Y, which does not recognise the divorce. Does that have priority over Z's recognition of the divorce?
39. In this case, the domicile of Jamila and Mohammed at the date of their marriage connected them with Pakistan. Under that law, they had capacity to marry because the divorce was valid. But they also have a connection with England, which is the jurisdiction in which the validity of their marriage is being considered. If English law does not recognise the divorce, it is necessary to decide which connecting factor should have priority.
40. The incidental question is much discussed by academic writers, who subdivide the question according to various criteria. However, the courts do not usually express themselves in terms of the incidental question. Nor is their reasoning based on the criteria that writers use to analyse the different forms of the incidental question. It would be possible to read most of the cases without realising that there was such a distinct category of issue. All of this makes it difficult to know whether it is permissible to use the academic classification and criteria in interpreting and applying the authorities.
41. To take an example relevant to this case, academic writers distinguish between two cases. One is the decision of the Supreme Court of Canada in Schwebel v Ungar 48 DLR (2d) 644, which adopted the reasoning of the Ontario Court of Appeal (42 DLR (2d) 622). The other is the decision of the English Court of Appeal in Lawrence v Lawrence [1985] Fam 106. They are said to raise different forms of the incidental question.
42. In Schwebel, the wife and her first husband were both Jewish and domiciled in Hungary. They decided to emigrate, but on the way there while in Italy the husband divorced the wife by gett. They both became domiciled in Israel. The wife married her second husband in Ontario while still domiciled in Israel. The second husband petitioned the Ontario court for a decree of nullity on the ground that the wife's divorce from her first husband was not recognised under Ontario law. The divorce was not recognised under Hungarian law or Italian law. It was, though, recognised by Israeli law. The Canadian courts recognised the divorce and held that the marriage was valid. The writers analyse this as an instance of priority being given to the Israeli capacity to marry rules. The recognition of the divorce was treated as an incidental question to be answered by the same law rather than the law of Ontario.
43. In Lawrence, the wife and her first husband were married in Brazil. She obtained a divorce in Nevada after satisfying its short residential period for jurisdiction. She then married her second husband, also in Nevada. The second husband petitioned the English court for a declaration that his marriage was not valid. The divorce was not recognised under Brazilian law, where for the purposes of English conflict of laws the wife was domiciled at the time. But the divorce was recognised under English law. The court held that the divorce was recognised and that the marriage was valid. The writers analyse this as an instance of priority being given to the recognition of divorce rules. The capacity to marry was treated as an incidental question to be answered by the same law rather than the law of Brazil.
44. However, the academic analysis of the decisions does not accord with the reasoning of the judges. In Schwebel, the Court's reasoning was this. At the time of the divorce, it was not valid in any relevant jurisdiction. However, when the wife acquired a domicile of choice in Israel, the divorce was recognised there. This gave her the right to remarry. Ontario law should recognise rights conferred by the law of a person's domicile. Hence both the divorce and the second marriage were valid under Ontario law. In Lawrence, there is a difference between the three judges, but the decision is a clear authority for the proposition that if a divorce is recognised as valid that carries with it the right to remarry.
45. Looking just at the judges' analyses suggests two explanations of the different outcomes in the cases that do not depend on the incidental question.
46. One analysis is this. The Canadian decision was based on the common law; as far as I know there was no relevant domestic legislation that dealt with the recognition of divorces. In contrast, the English decision did involve domestic legislation, the Recognition of Divorces and Legal Separations Act 1971. On this analysis, both courts applied the domestic divorce recognition rules current at the time. The 1971 Act removed the need to consider whether the English common law should develop in line with the Canadian. If this analysis is correct, I am bound by the decision of the English Court of Appeal to apply the English divorce recognition rules and, if they recognise the divorce was valid, to hold that that carries with it the right to remarry.
47. Another analysis is that in both cases the courts took an approach that ensured the validity of a marriage that was valid by the law governing it at the time it was contracted. The Canadian courts referred to the importance of recognising and protecting vested rights. And in Lawrence, it is on my reading inherent in the approach of all the judges that marriages should be upheld if possible. Sir David Cairns expressly referred to a comment to this effect by Sir George Baker in Perrini v Perrini [1979] Fam 84 at 92. On this basis, I am bound to apply any relevant law that will achieve this effect.
48. This leaves me in a quandary. Should I apply the cases on their reasoning as I see it or should I follow the academic analysis? Left entirely to my own devices, I would consider the validity of the marriage by reference to the English law on recognition of divorces. This is what Commissioners have traditionally done. If that was wrong, I admit to being a serial offender. But Mr Commissioner Mesher has instead relied on the incidental question analysis, thereby bypassing the English recognition of divorce rules: R(G) 2/00. I should follow that reported decision, but not slavishly so as to lead to the perpetuation of error: R(I) 12/75 at paragraph 21.
49. Out of an abundance of caution, I have decided to consider this case both on the basis that an incidental question arises and that the issue is governed by our domestic legislation.

Applying Schwebel

50. If the incidental question analysis does apply, the relevant case to consider is that of Schwebel v Ungar. This gives priority to the capacity to marry rules. There is a dispute or some uncertainty, as to the rule that governs capacity to marry in English law.
51. One view is that capacity to marry is governed by the law of the parties' ante-nuptial domicile. If this is the relevant rule, Mohammed and Jamila were domiciled in Pakistan at the time of the divorce and of their marriage. Both the divorce and the marriage were valid under the domestic law. That gave to Mohammed a vested right to remarry and to both Mohammed and Jamila, on their marriage, a vested right in their status as husband and wife. In those circumstances, I must recognise the divorce as valid and hold that Mohammed had capacity to marry Jamila.
52. The other view is that capacity to marry is governed by the law of the parties' intended matrimonial home. If this is the relevant rule, I have found that their intended matrimonial home, at least initially, was Pakistan. So, again I must recognise the divorce as valid and hold that Mohammed had capacity to marry Jamila.

Recognition of divorces in England

53. If the incidental question analysis does not apply, I have to consider the English law on the recognition of divorces.

The original common law

54. The original position at common law was that a divorce was recognised if it was given or recognised by the law of the spouses' domicile at the time. As I have already explained, Diwan and Mohammed were both domiciled in Pakistan. The divorce was valid in Pakistan. The divorce was, therefore, recognised by English law in 1961.

The common law as extended

55. This original common law was extended in Travers v Holley [1953] P 246 in order to bring the conflict of laws rules into line with the British domestic rules on jurisdiction. This extension was applied to cases of desertion. Its effect was this. A divorce was valid if it was obtained by a deserted wife in a country where she had been resident for three years or where the husband had been domiciled at the time he deserted her. This was based on reciprocity. The courts adopted the British rules on jurisdiction to grant a divorce as the test of jurisdiction for the validity of a divorce obtained in another country.
56. In this case, of course, the facts are slightly different. Diwan was not a deserted wife nor did she initiate the divorce. Mohammed obtained the divorce and effectively deserted Diwan. If the reasoning in Travers could be extended to cover the circumstances of this case, the divorce would be recognised on the basis of Diwan's residence in Pakistan. I am not aware of any authority on whether the reasoning in Travers can apply in such circumstances. However, it does not matter, because the divorce was recognised in 1961 under the original common law.

The new approach at common law

57. The common law position was further developed in Indyka v Indyka [1969] 1 AC 33. This allowed a divorce to be recognised if it was valid under a system of law with which either spouse had a real and substantial connection. The usual approach to case law is that it is retrospective in its effective. On that basis, the approach in Indyka would apply to the divorce in 1961. However, I am not sure that the validity of a divorce could be affected retrospectively in this way. Fortunately, it does not matter. Clearly, Diwan had a real and substantial connection with Pakistan. So, on my findings, did Mohammed. So, if Indyka is applied, the divorce is valid. And if Indyka is not to be applied, the divorce is still valid under the original common law.

Recognition of Divorces and Legal Separations Act 1971

58. The law was changed by this Act with effect from 1 January 1972. It was retrospective in its effect: see section 10(4). It applied to 'an overseas divorce', but only one that was 'obtained by means of judicial or other proceedings': see section 2. So, the Act did not affect the divorce from Diwan. Indeed, the effect of the common law was preserved by section 6 as the divorce was 'obtained outside the British Isles' and was valid 'by virtue of any rule of law relating to divorces … obtained in the country of the spouses' domicile'. In this case, the 'rule of law relating to divorces' was the common law that I have set out above.

Domicile and Matrimonial Proceedings Act 1973

59. The 1971 Act was amended by this Act with effect from 1 January 1974. Section 16 introduced recognition for overseas divorces when the spouses had been habitually resident in the United Kingdom for the preceding year. However, this only applied to divorces obtained by 'proceedings', which a bare talaq is not, and it was expressly not retrospective: section 16(3).

Family Law Act 1986

60. The law was further developed by this Act with effect from 4 April 1988. It remains in force. It applies to 'an overseas divorce'. This is defined in section 45 by reference to sections 46 to 49. The only relevant provisions are section 46(1) and (2).
61. Section 46(1) deals with an overseas divorce 'obtained by means of proceedings'. 'Proceedings' is defined by section 54(1) as meaning 'judicial or other proceedings'. It does not cover purely administrative divorces where no act of any official person or body is necessary in order to render it effective. A bare talaq is such a divorce. So, the divorce from Diwan cannot be recognised under this provision.
62. Section 46(2) deals with an overseas divorce 'obtained otherwise than by means of proceedings'. In order for this to apply in this case, three conditions have to be satisfied. First, the divorce has to be effective under the law of Pakistan. Second, it is necessary to identify the domicile of the parties. Domicile for the purposes of section 46 is determined by section 46(5). Its effect in this case is that Diwan's domicile would be determined by the law of Pakistan or of the United Kingdom, whichever was more favourable for recognising the divorce. Third, neither party must have been habitually resident in the United Kingdom throughout the year immediately previous to the divorce.
63. On my findings, Mohammed was habitually resident in the United Kingdom for part of the year immediately preceding the divorce. I do not know precisely when he left for Pakistan, but there is a record of a claim for sickness benefit on 16 November 1960. It follows that the divorce is not recognised under section 46(2). However, that is not the end of the matter. I have to consider how the 1986 Act applies to a divorce that was valid at the time.
64. Section 52 makes the Act retrospective in its effect. Section 52(1) provides that it applies to a divorce obtained before it came into force 'as well as to one granted or obtained on or after that date.' However, there are exceptions: see section 52(4). One is contained in section 52(5) and covers an overseas divorce that was recognised as valid under the 1971 Act. As I have already explained, section 6 of that Act preserved the effect of the common law in this case. So, the divorce is recognised as valid by reason of the section 52.
65. Finally on the 1986 Act, I must consider whether recognition of the divorce should be refused. This is governed by section 51. There are two possible reasons why I might refuse recognition. Both are discretionary. Section 51(3)(b) covers cases in which there is no official document certifying the divorce and section 53(1)(c) covers public policy.
66. As regards documentary evidence, I do not consider that the 1961 affidavit is an 'official' document within the meaning of section 53. Nevertheless, I consider that the evidence is sufficiently clear to prove on the balance of probabilities that there was a divorce. That leaves an element of doubt and it may be that in some cases the doubt will be sufficient to justify refusing to recognise the divorce. In this case, I do not consider that the doubt is so great. Moreover, in the exercise of the statutory discretion I take account of the length of time for which the marriage between Jamila and Mohammed has stood unquestioned and of the effects of non-recognition which I consider in the context of public policy.
67. As regards public policy, this is a ground that must be used sparingly. I do not consider that any factor justifies me refusing to recognise the divorce on this ground; quite the reverse. The marriage stood unquestioned from 1961 to 1996. It remained stable and monogamous until Mohammed's death. In that time the couple had and raised eight children. The law on illegitimacy has now been abolished, but still carries a stigma for some people. That stigma may extend both to the children and to their mother. In my view, public policy favours recognising the divorce.

Conclusion

68. So, on any analysis of the English recognition of divorce rules, the marriage between Jamila and Mohammed was valid.

Disposal

69. I allow the appeal and set aside the tribunal's decision, but substitute a decision to the same effect. But before leaving the case, I want to make some general comments about the difficulties caused by the same issue arising in separate proceedings.

Interrelated proceedings

70. The history of this case shows the potential effect of one decision and appeal proceedings on another but related decision. In this case, the two decisions shared the common issue of the validity of a divorce. In other cases currently before Commissioners, other issues are involved. Whatever the issue, the problem is the same. It is this. A decision is made in one case involving a first claimant. It has a potential effect on another decision or a second potential claimant, but that claimant is not a party to it. Later when the same issue arises in respect of the second claimant, the first is not a party to it. The issue is not resolved in respect of all claims and claimants at the same time by the same decision-maker or appellate body. The result can be conflicting decisions each made on different evidence and arguments.
71. There are ways in which the problem can be alleviated or overcome.
72. One way is to call one claimant as a witness in the case concerning the other or, if the claimant cannot attend (as Diwan cannot here), to use the written evidence relating to that claimant. There are two disadvantages to this approach. The first is that the claimants may have conflicting interests and may not be prepared to co-operate. The second is that, even if they do co-operate, the decision is only binding in respect of the claimant who is the party. The other is not bound.
73. Another way is to make one claimant a party to the other claimant's appeal. There are two disadvantages to this approach. The first is that it is only possible before Commissioners. They have power to add another claimant or potential claimant as a respondent to an appeal as 'a person affected': see the definition of 'respondent' in regulation 4(1) of the Social Security Commissioners (Procedure) Regulations 1999. There is no equivalent power for the appeal tribunal: see the definition of 'party to the proceedings' in regulation 1(2) of the Social Security and Child Support (Decisions and Appeals) Regulations 1999. This is a change from the previous position under which 'party to the proceedings' included 'any other person appearing to … a tribunal … to be interested in the proceedings': see regulation 1(2) of the Social Security (Adjudication) Regulations 1995. The second disadvantage is that, even if the other person is added as a party, that does not bring that party's decision within the jurisdiction of the Commissioner. All that it does is to allow the added party to see the evidence and to make submissions on the case.
74. At present, the only possible way to bring all relevant decisions before the same appellate body is for the decision-maker to give decisions that can be appealed by their respective claimants. However, as it is possible that the decisions will be favourable to one claimant and adverse to the other, it is likely that only one will wish to appeal.
75. It seems to be that the ideal way to avoid the problems that can arise in cases like this is for the Secretary of State to have a power to refer a claim or decision to a tribunal even if it is not under appeal. In this case, the Secretary of State could have referred the decision awarding a retirement pension to Jamila to an appeal tribunal when Diwan made her appeal. Alternatively, the decision-maker could have referred both Diwan's claim and the decision awarding the pension to Jamila to an appeal tribunal. Either way, the entitlement of both would have been decided together and both would have been bound by the outcome. This is not a novel power. The Secretary of State has power to refer an application for a departure direction or a variation to an appeal tribunal in its child support jurisdiction. And there was, until the Social Security Act 1998, a power of reference to social security appeal tribunals and medical appeal tribunals.
76. The procedural powers of tribunals and Commissioners are continually under review. There is also a fundamental reform of the tribunal system under way following the report by Sir Andrew Leggatt. I hope that the problems raised by cases like this will be taken into consideration by those concerned in both procedures.

Signed on original on 25 April 2005

Edward Jacobs Commissioner