R(G) 2/00

W had claimed widows benefit following the death of her husband (“H2”) who had worked in Britain for 19 years until his death. She had been married to H1but he had divorced her by a “bare” talak in 1971. In 1973 she married H2 with whom she had had tow children though she had never come to Britain. The DSS refused widow’s benefit on the basis that the bare talak was not a valid divorce under Pakistani, East Pakistani or Bangla deshi law and so she had not the capacity to marry H2. At first instance W won on the basis of expert reports on Bangladeshi family law that the marriage was valid as notification procedures for a talak divorce could not be carried out as there was no infrastructure in Bangladesh permitting this due to the civil war. The DSS appealed as all three previous decisions of the Commissioners had not been followed. W won the appeal on the basis that foreign law was a question of fact and so there was no jurisdiction to hear the appeal and the learned Commissioner distinguished all three previous decisions of the Commissioners.