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(Family Division; Sir Christopher Sumner sitting as a High Court judge; 13 July 2010)
The husband and wife were of Iranian origin. Under Sharia law, the wife had the right to a dowry fixed to price of gold (now worth £55,000). The wife was willing to forego this claim, but only if the father transferred his rights of custody of the child in respect to the mother post the child's 7th birthday, and provided a contingency fund comparable to fund she had already provided to litigate any breach of such custody rights. An order was drawn up following clear indications from the district judge as to the form the order should take. The preamble permitted the wife to apply for a return of the dowry only if the husband challenged her rights of custody. The husband appealed.
The husband was concerned about terms of the preamble to the order, which he believed left issue of dowry open. The issue as to the husband's rights of custody was not yet agreed. The appeal court heard evidence as to effect of preamble under Sharia law. After the evidence was received, the parties agreed the terms under which the husband gave up his rights of custody and provided a contingency fund and the wife agreed to change the terms of the preamble. There were substantial and disproportionate costs, the husband's position in negotiation had been to try to deal with ancillary relief separately from the child. This was not possible as the dowry was the wife's only protection against the husband asserting his rights of custody. The husband had been successful in removing the offending part of the preamble, but only because he had conceded rights of custody point.
The court must take a broad view of the litigation, not look simply at appeal point. Able to take child matters into account even though not formally seized with any application under Children Act 1989. The husband had acted unreasonably and his litigation conduct had been blameworthy in that he had failed to indicate his willingness to give up his rights of custody or to provide security until the hearing. In addition there were other failures by the Husband to respond to reasonable suggestions by wife. The father should pay £17,000 of mother's £28,500 costs.
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