Editorial Committee of the Cambridge Law Journal

Muslim Marriages in English Law Author(s): David Pearl Reviewed work(s): Source: The Cambridge Law Journal, Vol. 30, No. 1, 1972(A) (Apr., 1972), pp. 120-143 Published by: Cambridge University Press on behalf of Editorial Committee of the Cambridge Law Journal Stable URL: http://www.jstor.org/stable/4505530 . Accessed: 13/10/2012 03:37
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The Cambridge

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[1972A]

subject of a decision of the Pakistan of such a union should be refused.

public policy of the Islamic be given to the rules of the place of celebration.53 The Pakistan Supreme Court had cause recently to discuss the validity according to Pakistan law of a marriage celebrated in a register office in London between

courts, recognition of the validity It is possible, however, that the state would ensure that regard would not

a Muslim male domiciled in Pakistan and a Spanish girl.54 The Supreme Court tested the formal validity of this marriage in the " It is, therefore, correct to light of the personal law of the husband: before a say that the marriage of the parties in this case solemnised to the procedure laid down in the Registrar in England, according as it does to the above requirements, Marriage Act 1949, conforming would be recognised as valid, under Muslim law." 55 The personal law of the husband, therefore, plays no small part in law in the determination of the validity of a marriage celebrated outside Pakistan. The possibilities of limping marriages Pakistan are, unfortunately, (b) Essential only too apparent.56 of the marriage

validity

Essential to the rules of private international validity, according law generally recognised as correct, is governed by the law of the domicile of the parties, subject to the well-established pre-marital yet in the highly criticised exception in favour of the forum, highlighted case of Sottomeyer v. de Barros (No. 2).57 This exception to the rule is summarised in Dicey and Morris as follows: "The validity of a marriage celebrated in England between persons of whom the one has an English, and the other a foreign, domicile is not affected by any under the law of such foreign which, though existing incapacity does not exist under the law of England."58 domicile, The application of this rule may be illustrated by considering the A Muslim girl, domiciled in Pakistan, marries following set of facts. in this country in a civil ceremony an English man domiciled in to the personal law of the girl, this marriage England. According would be a Batil (void) marriage, because a Muslim girl lacks the 53 See Haque v. Haqu* [1963] W.A.R. 15; on appeal 108 C.L.R. 230; Hashmi v. Hashmi [1971] 3 W.L.R. 918. 54 See below, footnote 73. 55 [1967] P.L.D. 580 ai p. 602. 56 For a recent example, see Hashmi v. Hashmi [1971] 3 W.L.R. 918, where Mr. Commissioner Stabb Q.C. accepted the submission that a marriage celebrated in a register office in England between a Pakistan domiciliary and an English girl which was actually polygamous would be accepted by Pakistan as a valid marriage. The Commissioner, therefore, made a declaration that the children to this union were legitimate. 57 [1879] 5 P.D. 94. 58 Dicey and Morris, r. 31.

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and Wales at the resident in England 119,700 Pakistanis97 date 1966. To this number must be added Muslims from Rose estimated that there India, East Africa and the Middle East. would be 1,228,000 coloured migrants in England and Wales by 1971. It is thought that some 250,000 followers of the Islamic religion are included in this number. Census of this community into England and Wales, assume an English domicile of choice or immigrants retain their domicile of origin, has involved the English courts in It is to be hoped that the English unique and intriguing problems. courts will not ignore the peculiarities of their laws. whether the The settlement

97 Excluding white Pakistanis.