R(G) 2/00
Mr. J. Mesher CG/13358/1996
14.9.99
Recognition of foreign divorce – Bangladesh Muslim Family Laws Ordinance 1961 – whether question of foreign law a question of fact
The claimant, who lived in Bangladesh, claimed widow's benefit on 2 October 1991 as the widow of Mosabir Ali who had died on 13 May 1991 and whom she had married on 27 May 1975. He had been in receipt of retirement pension since 1975. The claimant's marriage certificate showed her status at the time of the marriage as a divorcee and the Benefits Agency asked for details of her previous marriage and her divorce. Her representatives submitted that she had been divorced by verbal talaq under Islamic law on 1 May 1973 and produced an affidavit from her father who witnessed the divorce. An adjudication officer refused the claim for widow's benefit on the ground that it had not been established and could not be presumed that there was a valid marriage between the claimant and Mosabir Ali.
The claimant appealed to a tribunal. The appeal tribunal adjourned the hearing to enable the claimant's representatives to seek expert opinions on the validity in Bangladesh of the talaq, following which notice had not been given to the Chairman of the Union Council under the Muslim Family Laws Ordinance 1961. The representatives obtained an expert opinion which concluded that although the Muslim Family Laws Ordinance 1961 was in effect in Bangladesh from 1971, non-service of a talaq on the Chairman of the Union Council did not invalidate the talaq. The opinion referred to case law which had left it uncertain whether from 1972 to 1982 there was a "hiatus" in the law, in that no-one was invested with the powers of the Union Chairman under section 7 of the Ordinance. The statement of Pakistani law in R(G) 2/71 was said to be out of date and no longer correct. The adjudication officer produced CG/17/1992 which contained as a schedule an expert opinion in relation to talaq pronounced in East Pakistan (which later became Bangladesh) on 6 January 1971. It concluded that a failure to notify the Chairman of the Union Council under section 7(1) of the Muslim Family Laws Ordinance 1961 made the talaq ineffective.
At the full tribunal hearing evidence was given by the Chief Imam of the Whitechapel Mosque, who was also a member of the Islamic Shariah Council. His evidence was that after partition in 1971 no law was followed in Bangladesh for some years and nobody would have been able to inform a Chairman of a divorce in that period. The tribunal allowed the claimant's appeal, holding that the talaq was effective. The adjudication officer appealed to the Commissioner.
Held, dismissing the appeal, that:
- there was an error of law in the tribunal's failure to consider English law on the recognition of foreign divorces and the effect of sections 45 to 54 of the Family Law Act 1986. It was not in dispute that the English conflict of laws rules judge a person's capacity to marry by the law of the person's domicile immediately before the marriage and that the claimant and Mosabir Ali were domiciled in Bangladesh at the time of their marriage. The claimant's capacity to marry Mosabir Ali, under the law of Bangladesh, depended on the validity of her earlier divorce. If under the law of Bangladesh the claimant's divorce was recognised as valid at the time of the marriage, she had capacity to marry Mosabir Ali, regardless of the English rules on the recognition of foreign divorces (paragraphs 11 to 18);
- foreign law is a question of fact (paragraph 20);
- it is only on questions of legal principle that there is an obligation to follow the decisions of Commissioners, or the courts. Expressing a conclusion about foreign law is not deciding a question of legal principle. It is the making of a finding of fact on evidence (paragraph 21);
- a finding in a decision of a Commissioner or a court constitutes evidence of foreign law. If there is no other evidence before an appeal tribunal or a Commissioner, then a finding of fact on foreign law should be accepted. If there are conflicting findings than an evaluation must be undertaken of the weight to be given to the competing items of evidence before reaching a conclusion of fact. If there are not conflicting findings in existing decisions, a party may argue on the basis of other expert evidence that the finding is wrong or inapplicable. The general principle is that the burden of proof of foreign law lies on the party who relies on it (paragraph 24);
- the tribunal was entitled to reach its conclusion on the evidence before it, on the basis that the findings on the law of Bangladesh in the Commissioner's decisions relied on by the adjudication officer were not related to the period of the "hiatus" in the law in Bangladesh (paragraph 30).
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DECISION OF THE SOCIAL SECURITY COMMISSIONER
- The adjudication officer's appeal is disallowed. The decision of the Whittington House East social security appeal tribunal dated 26 September 1995 is not erroneous in point of law, and therefore stands.
The background
- This appeal stems from the claim for widow's benefit received on 2 October 1991. The claimant, who lived in Sylhet in Bangladesh, said that she was the widow of Mosabir Ali, who had died on 13 May 1991 and whom she had married on 27 May 1975. Mosabir Ali had been in receipt of retirement pension since 1979. Copies of various supporting documents were enclosed with the claim form. The marriage certificate showed the marriage as having taken place in Golapganj, Sylhet, and described the bride's status as divorced. The Benefits Agency asked for details of the claimant's previous marriage and the divorce. Tower Hamlets Law Centre wrote on her behalf on 17 March 1992 that she had been divorced by verbal talaq and that since there was no document an affidavit had been obtained from her father, who had been present. The father's affidavit attested that the claimant had been married to Rostom Ali, who divorced the claimant on 1 May 1973 under Islamic law, and that the father had been a witness to the divorce. No divorce document was made.
- On the basis of that evidence, an adjudication officer gave the following decision, issued on 8 June 1993:
"It has not been established and cannot be presumed that there is a valid marriage between [the claimant] and Mosabir Ali.
This is because on the available evidence there is insufficient evidence of the subsistence of the marriage.
Accordingly widow's benefit is not payable on the contributions of Mosabir Ali from and including 13 May 1991 because it has not been proved that he was her husband."
The appeal to the appeal tribunal
- The claimant appealed against that decision. The appeal first came before an appeal tribunal on 18 April 1994, by which time various other documents had been submitted on behalf of both the claimant and the adjudication officer. The hearing was adjourned to enable the Law Centre to seek expert opinions on the validity in Bangladesh of a talaq of which notice had not been given to the chairman of the Union Council and to produce additional evidence.
- The Law Centre obtained an expert opinion dated 16 January 1995 from Mr. Ian Edge, a barrister and lecturer in law at the School of Oriental and African Studies, University of London. The opinion concluded that non-service of a talaq on the chairman of the Union Council did not invalidate the talaq under the Muslim Family Laws Ordinance 1961, which was in effect in Bangladesh from independence in 1971. It also referred to case-law leaving it uncertain whether from 1972 to 1982 there was a "hiatus" in the law, in that no-one was invested with the powers of the Union Chairman under section 7 of the Ordinance. The statement of Pakistani law in Commissioner's decision R(G) 2/71 was said to be out of date and no longer correct.
- The adjudication officer produced Commissioner's decision CG/17/1992, which contained as a schedule an expert opinion dated 23 August 1994 from Professor David Pearl, a barrister and Professor of Law at the University of East Anglia. The opinion was given in relation to a talaq pronounced in what was then still East Pakistan (which later became Bangladesh) on 6 January 1971. It concluded that the Muslim Family Laws Ordinance applied and that a failure to notify the chairman of the Union Council under section 7(1) made the talaq ineffective. The Commissioner decided that there was nothing wrong in law in the appeal tribunal's decision that the talaq was not valid for that reason.
- At the hearing on 26 September 1995 evidence was given in person by Mr. Abu Sayeed, who had been Chief Imam of the Whitechapel Mosque for over ten years and was a member of the Islamic Shariah Council for the United Kingdom. His evidence was that after partition in 1971 no law was followed in fact for several years and nobody would have been able to inform a chairman of a divorce in that period. There was also a letter from an advocate in Bangladesh. The adjudication officer submitted that the appeal tribunal was bound to follow CG/17/1992 and therefore to reject Mr. Edge's opinion.
The appeal tribunal's decision
- The appeal tribunal allowed the claimant's appeal, holding that the talaq was effective and that the claimant's marriage to Mosabir Ali was valid. Its reasons for decision were as follows (I have corrected some slips in the typing):
"English law recognises marriage abroad if it is performed in accordance with all the necessary requirements of the place in which it was contracted and the parties have capacity to contract marriage.
The Tribunal have to consider whether the divorce from Rostom Ali was valid. There was no written notice to the Chairman under the Muslim Family Laws Ordinance 1961, and the Tribunal take note of decision R(G) 2/71 paragraph 6. They also note decision CG/017/1992 containing Mr. Pearl's opinion which was presented to them today by the Presenting Officer. They have also taken note of decision R(G) 4/93, and in particular Mr. Edge's opinion in the Schedule that "all the laws enforceable in the courts in Bangladesh before 1971 are to be considered applicable after independence. Hence again there was legal continuity." The Muslim Family Laws Ordinance 1961 therefore existed in 1973, and still exists today. The Tribunal looked at Section 7 of the Muslim Family Laws Ordinance (document 43), and in particular sub-section 2 which provides for punishment for contravention, but does not provide for the talaq to be invalidated through non-service. This view is taken by Mr. Matin, an Advocate in the Appellate Division and High Court Division of the Supreme Court of Bangladesh, who has stated in his opinion on 17 April 1994 that 'it has not been provided that non-service will invalidate the talaq, ie divorce itself.' He is of the view that the talaq in the presence of witnesses is quite valid
despite non-service of notice of the same to the Chairman and the wife. Mr. Edge is of the same view at paragraph 11 of his opinion dated 16 January 1995.
The Tribunal considered very carefully the different conclusion which Mr. Edge and Mr. Pearl arrived at in their opinions, and therefore the conclusion in decision CG/017/1992 of which they must take account. However today we have heard evidence from the former Imam of the Whitechapel Mosque who is on the Islam Council which considers matters of marriage and divorce, who has said today that 80% of Bangladeshis do not give notice of talaq to the Chairman, and in addition Mr. Edge has included in his opinion the case of the Supreme Court in Tahara Begum v Farukh Meah (1983) 35 DLR (AD) 170-173, which said that 'there was a hiatus in the law itself' from 1972 until 1982 and that no-one had been invested in that period with the powers of the Union Chairman under the Muslim Family Laws Ordinance. The Imam has given evidence today, as did the appellant's representative, that in that period no-one would have given notice in writing to a Chairman. In view of the additional evidence at the hearing today of practice in Bangladesh and the state of the civil law in the relevant period, the Tribunal are satisfied that the talaq was valid.
No dispute has been raised before us as to the validity of [the claimant's] second marriage, and the Tribunal are satisfied that if it was a marriage validly performed it was not invalidated by a non-effective talaq."
The appeal to the Commissioner
- The adjudication officer now appeals against that decision, with the leave of the chairman of the appeal tribunal. The course of the proceedings has been complicated and, unfortunately, long. There was an oral hearing before a Commissioner on 25 August 1998, which was adjourned for further submissions to be made on a number of matters and to enable the Chief Commissioner to consider the possibility of appointing a Tribunal of Commissioners. In October 1998 the Commissioner indicated that the Chief Commissioner had decided not to appoint a Tribunal. A further oral hearing which was fixed for March 1999 was postponed. The Commissioner who was then dealing with the case has now retired from office. The case was referred to me and, following a postponement because of the illness of a representative, an oral hearing took place on 17 August 1999. The parties were aware that all issues were open at that hearing. At the hearing the adjudication officer was represented by Mr. Jeremy Heath of the Office of the Solicitor to the Department of Social Security. The claimant was represented by Mr. Chandra Sekar of the Free Representation Unit. Both representatives had earlier put in comprehensive written submissions. I am grateful for those submissions and the more focused discussion at the oral hearing.
- Mr. Heath submitted that the appeal tribunal had erred in law in two ways: in failing to consider the English law on the recognition of foreign divorces and in failing to follow CG/17/1992. I reject both limbs of that submission.
Recognition of foreign divorces and "the incidental question"
- There has been a great deal of discussion in this case of the English law on the recognition of foreign divorces and of the effect of sections 45 to 54 of the Family Law Act 1986. I conclude that that issue is irrelevant in the circumstances of this case, so that there was no error of law in the appeal tribunal's failing to consider it. The explanation of that conclusion involves some difficult areas of the conflict of laws, and in particular the problem known as "the incidental question". I gave notice of the possibility of my coming to that conclusion in a direction dated 13 April 1999. Mr. Heath and Mr. Sekar made brief submissions on the point at the oral hearing, and neither requested, when asked, the opportunity to make any further submissions on it.
- The starting point is not in dispute. The validity of the claimant's marriage to Mosabir Ali on 27 May 1975 depends on whether she had the capacity to marry him. The English conflict of laws rules judge a person's capacity to marry by the law of the person's domicile immediately before the marriage. The claimant and Mosabir Ali were domiciled in Bangladesh on 27 May 1975, and apparently had been for many years, if not from birth. I do not need to consider whether the English rule might require reference to the law of the place of the intended matrimonial home, as that was also Bangladesh. There is no dispute that Mosabir Ali had, under the law of Bangladesh, the capacity to marry the claimant. Her capacity to marry him, under the law of Bangladesh, depended on the validity of her divorce by Rostom Ali, as under that law a woman cannot take more than one husband. I am satisfied that in the present case, the main question is the validity of the claimant's marriage to Mosabir Ali. The answer to that question depends on the answer to the further question- "the incidental question" - of the validity of her divorce by Rostom Ali. The problem is whether that question is to be answered according to the law which governs the main question, ie the law of Bangladesh, or according to the law of England, including its rules on the recognition of foreign divorces.
- There appears to be no clear and binding English authority on the resolution of this problem. The famous decision of the Supreme Court of Canada in Schwebel v Ungar (1964) 48 Dominion Law Reports (2d) 644 had a very similar context. A husband and wife, domiciled in Hungary, decided to settle in Israel. On the journey, while they were in Italy, the husband divorced the wife by delivery of a ghet according to Jewish religious law. The parties later acquired a domicile of choice in Israel. While still domiciled there, the wife married a second husband in Ontario. The second husband petitioned the Ontario courts for a decree of nullity on the ground of the wife's bigamy. Under Hungarian and (probably) Ontario law, the divorce by ghet was invalid. Under Israeli law, it was valid. The Ontario conflict of laws rules judged capacity to marry by the law of each party's antenuptial domicile. The Supreme Court upheld the decision of the Ontario Court of Appeal that the wife's marriage to the second husband was valid. There is much learned dispute among academic commentators about the precise grounds of the decision. There are some suggestions that the Court was prepared to allow for an exception to the normal Ontario rule on the recognition of foreign divorces, which would not have recognised the divorce because it was not recognised by the law of the country in which the parties were domiciled at the date of the divorce. However, the Supreme Court was at the very least prepared to contemplate the situation where the main question (the wife's capacity to enter the second marriage) was governed by the law of Israel, which recognised the divorce as ending her first marriage, and where the law of Ontario would not recognise the divorce as having ended the first marriage. In that situation, the Court was prepared to determine the incidental question according to the law which governed the main question.
- Applying that principle to the present case would lead to the result that, if under the law of Bangladesh the claimant's divorce by Rostom Ali was recognised as valid as at 25 May 1975, she had capacity to marry Mosabir Ali, regardless of the English rules on the recognition of foreign divorces.
- In Padolecchia v Padolecchia [1968] P 314, Sir Jocelyn Simon P expressly approved the result of Schwebel v Ungar at the stage of the Ontario Court of Appeal, in particular on the time at which capacity to marry was to be determined. However, that was not necessary to his decision on the view he took of the facts. In R v Brentwood Superintendent Registrar of Marriages, ex parte Arias [1968] 2 QB 956, Schwebel v Ungar was not mentioned by the Divisional Court, nor was the problem of the incidental question. The Registrar had refused to issue a certificate to allow an Italian national (G) to marry in this country. G had throughout been domiciled in Switzerland and was divorced from his wife by a Swiss court. He was not free to marry there, because Swiss law judged capacity to marry by the law of the state of a person's nationality and Italian law did not recognise the divorce. English law would have recognised the divorce as obtained in the country of the spouses' domicile. The Divisional Court held that G was not free to marry, applying the rule that capacity to marry is governed by the law of the person's antenuptial domicile. The precise result has since been changed by legislation, but that does not affect the general principle. Finally, in Lawrence v Lawrence [1985] Fam 106, the majority of the Court of Appeal apparently accepted that, where a foreign decree of divorce was to be recognised under section 3 of the Recognition of Divorces and Legal Separations Act 1971, a party to the divorce was free to remarry although the divorce would not be recognised by the law of that party's domicile. The reasoning of the three judges is not easy to follow, but the principle seemed to be that, if English law recognised a divorce as effective to bring the marriage to an end, it had to follow that the parties were free to remarry.
- The outcome of the English authority is thus inconclusive at the best. The decision in Lawrence has been subject to a good deal of academic criticism for applying an over-simplified approach to difficult conceptual problems. Without going into such matters, it seems to me that there is much to be said for the view expressed by the learned editors of Dicey & Morris on the Conflict of Laws (12th ed, 1993, at pp 49-53) that a distinction is to be drawn between cases where English law recognises a divorce, but the law of the relevant party's antenuptial domicile does not, and cases where English law does not recognise a divorce, but the law of the relevant party's antenuptial domicile does. Lawrence and the Brentwood Registrar case fall into the first category. Schwebel v Ungar and the present case fall into the second category. In relation to that category, there is not the difficulty of failing to give effect to the recognition of a decree by English law. I consider that there the primacy of the rule that capacity to marry is governed by the law of each party's antenuptial domicile should be accepted. That also has what seems to me to be the great advantage that a person's capacity to marry can be judged and determined as at the date of the marriage in question, by asking whether the law of their domicile accepted the person as free to marry at that date. It would be highly unsatisfactory if the validity of a marriage could fluctuate according to changes in the English law about the recognition of foreign divorce decrees. Accordingly, I follow the persuasive authority of the Supreme Court of Canada in Schwebel v Ungar and apply the principle of that decision in the present case.
- That leads to the result mentioned in paragraph 14 above, and to the conclusion that the appeal tribunal did not err in law by failing to consider the English law on the recognition of foreign divorces. That issue was not material to the case before it.
- I record briefly Mr. Sekar's submission that it was unnecessary for me to make any decision on the problem of the incidental question. He argued that the central test of recognition of an divorce obtained otherwise than by means of proceedings under section 46(2) the Family Law Act 1986 was whether the divorce was effective in the country in which it was obtained and the parties were domiciled. Then, he said, since the appeal tribunal had in substance decided that test in favour of the claimant, it would necessarily have decided the recognition question in favour of the claimant if it had been expressly considered, and its decision should be upheld. However, leaving aside what I consider the difficult question of whether the 1986 Act (in force from 4 April 1988) should be applied to the recognition of a 1973 divorce decree in relation to a 1975 marriage despite the provisions of section 52, Mr. Sekar's argument does not quite work. Under section 51 of the 1986 Act there is a discretion to refuse to recognise an overseas divorce on a number of grounds. Although the adjudication officer has at the previous Commissioner's oral hearing disclaimed the possibility that recognition would be contrary to public policy, there is no official document certifying that the divorce is effective under the law of Bangladesh. I cannot agree with Mr. Sekar that the description of the claimant as divorced on the marriage certificate makes that such a document. Thus a discretion arises under section 51(3)(b), which was not considered at all by the appeal. If I had concluded that the recognition issue was material, I would have had to set the appeal tribunal's decision aside as erroneous in point of law.
Foreign law as a question of fact
- The second limb of Mr. Heath's argument was that the appeal tribunal erred in not following Commissioner's decision CG/17/1992. He accepted the general principle of English law that the content of a foreign law is a question of fact, to be proved by evidence, but submitted that Commissioners' decisions about the effect of the Muslim Family Laws Ordinance 1961 involved not merely findings of fact about the law of Pakistan or Bangladesh, but also conclusions of law about how those findings affected British social security law. He emphasised the duty of appeal tribunals to follow Commissioners' decisions, whether reported or unreported, as laid down in R(I) 12/75 and R(SB) 22/86. Reported decisions only had any greater weight where there was some conflict, and he submitted that Commissioners had consistently held that a talaq of which notice is not given to the chairman of the Union Council in accordance with Article 7 of the Ordinance is not valid.
- I hope that I have properly understood Mr. Heath's submission, because it seems to me simply not to hang together. I do not need to cite any of the myriad of cases establishing the general principle in English law that foreign law is a question of fact. They are collected in chapter 9 of Dicey and Morris (12th ed). Following the oral hearing, my attention has been drawn to the decision of the Court of Appeal in Macmillan Inc v Bishopsgate Investment Trust plc and others (No. 4) (The Times 7 December 1998), but I do not think that that decision impinges on the general principle in a way which makes it necessary for the parties here to have an opportunity to comment on it. The Court of Appeal there was able to consider questions of fact as well as questions of law.
- The point at which Mr. Heath's submission breaks down emerges from paragraph 19 of R(I) 12/75 where the Tribunal of Commissioners said:
"Commissioners speak with equal authority. All their decisions whether unnumbered, numbered or reported may be cited to Commissioners, local tribunals and insurance officers. Where they decide questions of legal principle they must be followed by insurance officers and local tribunals in cases involving the application of that principle, unless they can be distinguished. It should be borne in mind that similarity in underlying facts does not automatically give rise to similarity in the principle to be applied and questions of fact should not be elevated into questions of legal principle."
It is only on questions of legal principle that there is an obligation to follow the decisions of Commissioners, or the courts. Expressing a conclusion about foreign law is not deciding a question of legal principle. It is the making of a finding of fact on evidence. Commissioners may have expressed such conclusions without expressly labelling them as conclusions of fact and not law, but that does not change their nature. I agree with Mr. Heath that the appeal tribunal in the present case had to consider questions of fact and law, and probably mixed questions of fact and law. But he was not submitting that the appeal tribunal erred in its construction of British social security law (for instance on what is meant by "widow") or of the English conflict of laws rules on the law by which capacity to marry is governed. He was submitting that the appeal tribunal erred in concluding that under the law of Bangladesh the claimant's divorce by Rostom Ali was not valid or effective. That is simply not an allegation of an error of law, even when put in the form of a failure to follow a Commissioner's decision.
- What then is the effect of decisions of Commissioners and the courts which deal with questions of foreign law? It is plain that section 4(2) of the Civil Evidence Act 1972 does not apply to proceedings before appeal tribunals or Commissioners. Those are not "civil proceedings", as defined in section 18(1) of the Civil Evidence Act 1968 (the definition adopted by section 5(1) of the 1972 Act). That definition covers only proceedings in any of the ordinary courts of law and in other tribunals in relation to which the strict rules of evidence apply. Thus, where a question of foreign law has been determined by a court, the effect given to that determination by section 4(2) cannot operate. And as the Commissioner is not a court, a determination of foreign law by a Commissioner falls outside section 4(2) for that additional reason. However, as I suggested in paragraph 9 of my decision CG/12487/1996, a similar principle should be applied by analogy in the social security jurisdiction.
- Section 4(2) of the Civil Evidence Act 1972 provides:
"(a) any finding made or decision given on that question [of foreign law] in ... proceedings [before certain courts] shall, if reported or recorded in citable form, be admissible in evidence for the purpose of proving the law of that country, territory or part with respect to that matter; and
(b) if that finding or decision, as so reported or recorded, is adduced for that purpose, the law of that country, territory or part with respect to that matter shall be taken to be in accordance with that finding or decision unless the contrary is proved:
Provided that paragraph (b) above shall not apply in the case of a finding or decision which conflicts with another finding or decision on the same question adduced by virtue of this subsection in the same proceedings."
- It is common sense that the adjudication officer (or now the Secretary of State) should not be required to produce fresh expert evidence before an appeal tribunal or a Commissioner every time that a question of foreign law is raised. A finding in a decision of a Commissioner or a court constitutes evidence of foreign law. If there is no other evidence before an appeal tribunal or a Commissioner, then the finding of fact on foreign law should be accepted. If there are conflicting findings, then, as under the proviso to section 4(2), an evaluation must be undertaken of the weight to be given to the competing items of evidence before reaching a conclusion of fact. If there are not conflicting findings in existing decisions, a party may argue on the basis of other expert evidence that the finding is wrong or inapplicable, for instance because of changes in foreign law or the existence of some qualifications or limitations not relevant to the case in which the finding was made. I suggested in paragraph 9 of CG/12487/1996 that in such circumstances, a presumption in the form laid down in section 4(2)(b) should apply, so that the party would have to prove on a balance of probabilities that the finding was wrong. On reflection, I do not think that it would be proper to invent such a presumption and apply it outside the area specifically covered by section 4(2). This dispute also should be determined by evaluating the weight to be given to the competing items of evidence, but giving the appropriate weight to the fact that a finding has been made by a Commissioner or a court. The general principle is that the burden of proof of foreign law lies on the party who relies on it, and that burden should operate in the present context.
- In the present case, the appeal tribunal was referred to Commissioners' decisions R(G) 2/71, R(G) 4/93 and CG/17/1992.
- R(G) 2/71 was a decision given at a time when appeals from national insurance local tribunals to Commissioners lay on questions of law and fact. Thus there was nothing exceptionable in fresh expert evidence being obtained before the Commissioner and relied on. A view was expressed about the law of Pakistan that a failure to give notice of a talaq to the chairman of the Union Council invalidated the talaq, but that was not necessary to the decision, which rested on the Muslim Family Laws Ordinance 1961 not being in effect in Azad Kashmir at the date of the talaq and the remarriage in 1967. R(G) 2/71 might not then be weighty evidence about the law of Bangladesh several years later.
- The question of non-notification of a talaq was not raised in R(G) 4/93, nor was the Ordinance relevant. The expert opinion in the case merely noted the undisputed general legal continuity between the laws in force in East Pakistan immediately before independence and those in force in the newly independent Bangladesh.
- CG/17/1992 concerned an unnotified talaq given in East Pakistan in January 1971, when the Ordinance applied as a part of the law of Pakistan. The woman the subject of that talaq remarried in Bangladesh in July 1972. The appeal tribunal had applied R(G) 2/71 in holding that the lack of notice made the talaq invalid under the Ordinance, so that the second marriage was not valid. The Commissioner held that there was no error of law. Thus, his acceptance of the expert opinion of Professor Pearl was not necessary to the decision. The Commissioner noted that if he had set
the appeal tribunal's decision aside, he would have reached the same result on the basis of the expert opinion. Again, that might not be thought to constitute weighty evidence about the law of Bangladesh some years later.
- One can see how an incautious reading of those decisions, without the benefit of knowledge of the general principle of English law that foreign law is a question of fact, could lead to parts of them being given a much greater authority than is legally right. In fact, on the contrary, a proper reading shows the complete impracticability of any rule which gives such rulings the authority of rulings on questions of legal principle. Quite apart from the difficulty of defining the scope of any ruling (does anything said about the Muslim Family Laws Ordinance apply to any country in which it was in force?), how could such a rule cope with the inevitable changes and developments in the law of a particular country over time?
- In my judgment, the appeal tribunal in the present case cannot be faulted in law for the way in which it approached those three Commissioners' decisions. The appeal tribunal took them into consideration, but took particular account of Mr. Edge's expert opinion of the effect of the hiatus in the law of Bangladesh from 1972 to 1982, which it considered to be supported by the evidence of the Imam. The factor of the hiatus in the law was one which was not relevant to the circumstances of R(G) 2/71, R(G) 4/93 or CG/17/1992, and it is not necessarily significant that it was not mentioned in any of the expert opinions in those cases. Bearing in mind what I have said above about the weight to be given to the three decisions as evidence of the law of Bangladesh, the appeal tribunal was perfectly entitled, in its assessment of the evidence, to accept Mr. Edge's opinion. Other evidence (for instance, views expressed in other cases such as Chaudhary v Chaudhary [1985] Fam 19 (mentioned in the written submissions to the Commissioner, but again a case in which the Ordinance was irrelevant) or the decision in CG/12487/1996) was not before the appeal tribunal. It therefore cannot be faulted for not considering such evidence.
Conclusion
- The result is that the appeal tribunal did not err in law in relation to its conclusion that the claimant's divorce by Rostom Ali was valid. I am satisfied that that conclusion is one which it was entitled to reach on the evidence before it and that it adequately explained what it made of the evidence and why it concluded as it did. It was also entitled to conclude that the claimant was validly married to Mosabir Ali at the date of his death and to allow the appeal against the adjudication officer's decision issued on 8 June 1993. That means that the claimant is entitled to the appropriate widow's benefits under sections 24 to 26 of the Social Security Act 1975 (sections 36 to 38 of the Social Security Contributions and Benefits Act 1992).
- The adjudication officer's appeal to the Commissioner is therefore dismissed.
Date: 14 September 1999 (signed) Mr. J. Mesher Commissioner
