Having regard, inter alia, to sections 11 and 14 of the Matrimonial Causes Act 1973, sections 45 and 50 of the Family Law Act 1986, and authority, non-recognition in the domestic jurisdiction under the 1986 Act of a transnational divorce between a Pakistani wife and her Pakistani first husband does not ipso facto determine the effect of the divorce for the purposes of establishing whether the wife has capacity to remarry. The fact that the divorce or annulment would not be recognised elsewhere is not to cause the subsequent marriage or civil partnership of either party wherever it took place to be treated as invalid. Since section 45 of the 1986 Act is not determinative of the question of capacity, it is necessary to decide whether, in the circumstances of the case, priority ought to be given to the rule governing capacity to marry, under which the wife has capacity to marry, or the rule governing the recognition of foreign divorces, under which the wife’s previous divorce is not recognised; but it is not appropriate to lay down a general rule as to priority, and a priori reasoning ought to be avoided, and a flexible approach is to be adopted. Each situation is to be looked at separately in order to find a solution that produces the best results in that situation (paras 78–89).

Where, therefore, the wife in a transnational divorce case, had married in Pakistan and was later divorced by talaq recognised in Pakistan but not England, where she was held by the judge to lack capacity to marry because the talaq between herself and her first husband was not recognised in English law and she appealed—

Held, appeal allowed. The wife’s marriage to the husband was valid as she had the capacity to marry because her previous divorce was effective under the law of Pakistan. The fact that that divorce was not entitled to recognition under the Family Law Act 1986 did not mean that she did not have the capacity to marry (paras 90, 91, 92).