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The recognition of extra-judicial divorces in the United Kingdom

Published online by Cambridge University Press:  02 January 2018

James Young
James Young*
Affiliation:
University of Wales Institute of Science and Technology
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Extract

Extra-judicial divorces obtainable under some systems of family law are now very familiar to private international lawyers. The most familiar is the Muslim talak, by which a husband may unilaterally divorce his wife, but there are others including other forms of religious divorces and secular divorces obtained by administrative process or simply by mutual agreement. Some of these divorces may be hedged around by legal procedures; others may be extremely informal.

Type
Research Article
Information
Legal Studies , Volume 7 , Issue 1 , March 1987 , pp. 78 - 91
Copyright
Copyright © Society of Legal Scholars 1987

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References

1. See, eg, North, ‘Recognition of Extra-Judicial Divorces’ (1975) 91 LQR 36 at pp 36–42; International Encyclopaedia of Comparative Law, Vol IV, ch 11 passim.

2. To be brought into force in the course of 1987.

3. The provisions apply equally to the recognition of decrees of divorce, nullity and legal separation, but it is divorces which have created the problems.

4. See, in the associated context of nullity decrees, the Maltese decree cases discussed in Cheshire and North's Private International Law (10th ed), p 414.

5. Section 2.

6. Section 3(1).

7. [1985] Fam 19, criticised by Smart (1985) 34 ICLQ 392.

8. Ibid at 41.

9. Ibid at 46.

10. [1980] AC 744.

11. Section 6, as amended by the Domicile and Matrimonial Proceedings Act 1973.

12. Law Com no 137, Scot Law Corn no 88, para 6.11.

13. Under the 1971 Act a problem had arisen with divorces obtained in countries, such as the USA, comprising territories with different legal systems in force. If a national obtained a divorce, was it necessary for it simply to be erective in the territory of divorce, or should it be recognised in the country as a whole? Section 49(3)(a) makes it clear that it must be effective ‘thoughout’ the country as a whole.

14. Domicile, in this context, may mean either domicile according to the law of the part of the UK in which recognition arises, or domicile according to the lex divortii (s 46(5)).

15. This date is different for formal divorces, where it is the date at which proceedings were instituted (s 46(3)).

16. Section 46(5).

17. 473 HL Official Report (6th series) col 1082 (22 April 1986).

18. See, eg, Chaudhary v Chaudhary [1985] Fam 19; Zaal v Zaal (1982) 4 FLR 284.

19. Loc cit, col 1082.

90. North, op cit (1975) 91 LQR 36 at p 41, and references there cited.

21. Of course, social and economic pressures may put the wife in a weak position, yet this may also be the case with more formal divorces.

22. An example of the incidental question now governed by the Family Law Act 1986 s 50.

23. Eg Nevada, as in Lawrence v Lawrence [1985] 2 All ER 733.

24. This definition of domicile is used in relation to recognition of formal divorces, but this is less surprising since the recognition roles are so much more liberal in relation to them.

25. [1972] Fam 173.

26. Lord Simon, 343 HL Official Report (5th series) col 320(8 June 1973). Lord Simon, the judge in Qureshi v Qureshi, was the prime instigator of s 16, see Parl Debs, HL, Vol 349, col 943.

27. This provision no longer refers to a ‘proceeding’ in the United Kingdom. The rather sterile debate about the meaning of proceeding in this context is thus laid to rest. See on this North op Cit (1975) 91 LQR 36 at pp 46–53; Chaudhary v Chaudhary [1985] Fam 19 at 39, 42.

28. Law Com no 137, Scot Law Corn no 88, para 6.30.

29. Shah v Barnet LBC [1983] 2 AC 309; Kapur v Kapur [1985] FLR 920.

30. This might be just the sort of situation in which a UK court might hold that it was not the appropriate forum, because it was insufficiently connected with the case, and accede to an application for a stay of proceedings.

31. [1986] 2 All ER 32.

32. Ibid at 36.

33. Law Com, op cit, para 6.11, n 327.

34. Law Com, ibid, para 6.30.

35. See also the observations of Taylor J in R v Immigration Appeal Tribunal, ex p Secretary of State for the Home Department [1958] QB 190 at 199.

36. Such a possibility had been foreseen during the provision's passage through Parliament, but it was not regarded as a serious drawback: 11 April 1973, Parl Debs, HC, Standing Committee C, col 121. HC Official Report, SCC, 11 April 1973, col 121.

37. Section 51(3)(c).

38. See, eg, Newmarch v Newmarch [1978] Fam 79.

39. Section 51(4).

40. (1982) 4 FLR 284.

41. Cf Sharif v Sharif (1980) 10 Fam Law 216.

42. Cf Chaudhary v Chaudhary [1985] Fam 19.

43. Varanand v Varanand (1964) 108 SJ 693.