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Family Law

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27 APR 2012

FINANCIAL REMEDIES/COSTS: Arshad v Anwar [2012] EWCA Civ 372

(Court of Appeal; Thorpe, Moses and Hughes LJJ; 23 February 2012)

The parties married in Pakistan and set up home in England, where they were habitually resident at all material times. Following the separation two years later the husband pronounced a talaq somewhere in the UK, which he then had registered in Pakistan. The wife issued divorce and ancillary relief proceedings, which prompted the husband to write to the court and the wife's solicitors stating that there had already been a talaq and that the financial application was misconceived. That assertion resulted in the wife's petition being stayed and a subsequent application by her to lift the stay.

The wife applied for leave under the 1984 Act before succeeding in having the stay lifted on the basis that the talaq had been pronounced in the UK and therefore could not be recognised. As a result of that decision the wife applied for permission to withdraw her 1984 application and an order for the husband to pay her costs, but giving the husband less than 7 days' notice. The husband's application for an adjournment was refused, permission to withdraw was given and an order for costs was made against the husband.

The order could not stand due to the lack of notice. The judge rejected the husband's argument that the wife's costs were not recoverable, finding that she was forced into preparing her application by virtue of the husband's stance in the proceedings but she should not have issued the proceedings so swiftly and therefore the costs in relation to launching the application were not recoverable. Additionally, the question of duplication between the costs of the Part III application and the application to lift the stay would need to be assessed. The appeal was allowed and the order substituted with an order that the wife's costs be assessed on that basis.

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