Hayatleh v Modfy

Lord Justice McFarlane :

This appeal concerns the validity of a marriage conducted in Syria in l999. The issue arose only after Professor Khaled Hayatleh (“the husband”) petitioned for divorce on 8 th February 2013 and his wife, Mrs Reem Mofdy (“the wife”) issued a cross-prayer for divorce two months later. It was not until 3 rd June 2013 that the adequacy of the paperwork establishing the validity of the marriage was first questioned by District Judge Gatter. Thereafter the divorce proceedings have been in abeyance whilst the parties and then the court have investigated the question of whether or not the parties were validly married.

The issue was determined by His Honour Judge Tolson QC sitting at the Oxford Family Court on 27 th May 2015. He held that the Syrian marriage was valid and that it was therefore open to the parties to pursue divorce proceedings in the United Kingdom. It is against that outcome that the husband now appeals.

The factual background

The factual background can be shortly stated and is largely agreed between the parties.

On 25 th February l999 a religious marriage took place in Syria between the wife, who was present, and the husband, who was not. The husband was then living in England and his place was taken, as proxy, at this religious ceremony by his brother. This proxy procedure was, as the judge found, entirely sufficient for the religious purposes of that ceremony. The marriage was an arranged one and, although the couple had not met for many years (having been childhood acquaintances) all parties accepted, and the judge had no doubt, that “the marriage ceremony was intended as a binding and valid ceremony according to Syrian law”.

On 28 th April 1999 the Third Religious Court in Homs acting “in the name of The Arab People in Syria” (a reference to Palestinians resident in Syria which is the appropriate classification for this couple) determined the following two matters (as set out in the official English translation):

“1. To confirm the two claimants unofficial marriage that occurred in Homs on Feb 25 l999 on the basis of bridal money amounting to 50 Syrian pounds paid in advance and 300,000 pounds deferred;

2. That the official registration of the marriage be conditioned to the presentation of the marriage permit issued by The Military Service Department, or the realisation of an infant.”

Thereafter the husband and wife both travelled to Jordan in order to spend time together and to commence attempts to obtain en