roshni- 620 recognition of foreign judgments and decrees on marriage

Recognition of Foreign Judgments and Decrees on Marriage

ROSHNI K TV Semester620

Contents

Introduction...........................................................................................................................................3

Recognition of Valid Polygamous Marriages in England........................................................................4

Statutory Provisions for the recognition of polygamous marriages...................................................8

The Canonist Doctrine of Indissolubility of Marriage............................................................................9

The Matrimonial Causes Act, 1857........................................................................................................9

Jurisdiction to Grant Decrees of Divorce...........................................................................................9

Recognition of Foreign Divorce Decrees..............................................................................................11

1. Recognition at Common Law...................................................................................................11

2. Divorce Recognised by Lex Domicilii........................................................................................11

3. Reciprocal Recognition: Same Jurisdictional Circumstances – The Rule in Travers v. Holley. . .12

4. Factual Similarity –Extension of the Rule in Travers v. Holley..................................................12

5. Combination of the Rule in Travers v. Holley with the Rule in Armitage v. A.G.?....................13

6. The Rule of Real and Substantial Connection..........................................................................13

Modern English laws regarding Recognition of Foreign Divorces........................................................14

Old Pre Act grounds Preserved by the Act.......................................................................................15

New Grounds introduced by the Act...............................................................................................15

Divorce granted elsewhere in the British Isles.................................................................................16

Recognition of Extra- Judicial Divorces under Common Law...............................................................16

Extra Judicial Divorces under the Act of 1971.....................................................................................17

a. Those obtained outside the British Isles..................................................................................17

b. Those obtained within the British Isles....................................................................................19

Traditional rules of recognition: Nullity decrees..................................................................................19

Requirements for recognition of nullity decrees.............................................................................20

Grounds of non-recognition of foreign divorces..................................................................................20

Grounds of Non recognition under the 1971 Act.............................................................................21

i. Irreconcilable Judgments.....................................................................................................21

ii. No subsisting Marriage........................................................................................................21

iii. Want of notice of the proceedings......................................................................................21

iv. Want of opportunity to take part in the proceedings..........................................................22

v. Want of documentation in non- proceedings cases............................................................23

vi. Recognition is contrary to public policy...............................................................................23

National University of Advanced Legal StudiesPage 1

Recognition of foreign decrees............................................................................................................23

Conclusion...........................................................................................................................................24

Bibliography.........................................................................................................................................25


Introduction

Lord Westbury in Shaw v. Gould1 said that “Marriage is the very foundation of civil society.

And no part of laws and institutions of a country can be of more vital importance to its

subjects than those which regulate the manner and conditions of forming, and if necessary of

dissolving, the marriage contract.” Marriage whether arising out of a contract or a sacrament,

creates a status. Marriage in English Law arises out of a contract since there can be no valid

marriage unless each party consents to marry the other.

The concept of an English marriage was defined by Lord Penzance in Hyde v. Hyde2 as

follows, “marriage as understood in Christendom may be defined as the voluntary union for

life of one man and one woman to the exclusion of all others.” The requirements thus, of an

English marriage are that (1) union should be voluntary (2) should be monogamous (3) it

must not be for a limited period.

It is clear from the above that polygamous marriages are excluded from the concept of

English marriages. The exclusion embraces not only actual polygamous union (i.e., husband

actually has more than one wife) but also a potentially polygamous marriages. If the husband

is entitled by the relevant law to have more than one wife at a time, his marriage is regarded

as polygamous although in fact he has only one wife. This is because the marriage is

potentially polygamous in the sense that the husband can at any time exercise his right to

have a plurality of wives. It is the nature of the ceremony according to the law of the place of

celebration, and not the personal law of either party, that determines whether a marriage is

monogamous or polygamous. The crucial question is whether the law under which the law is

celebrated permits polygamy; if it does not, the marriage is monogamous. If a country has

provision for both polygamous and monogamous marriages, the parties’ choice of form of

ceremony will determine the nature of the marriage. Thus, a Muslim marriage in India is

polygamous, although the husband in fact has only one wife. In Sowa v. Sowa3 a marriage

was celebrated in Ghana between parties domiciled there. The marriage was potentially

polygamous as the law of Ghana allows plurality of wives. The husband promised to go

through another ceremony which according to the law of Ghana will convert the marriage

into a monogamous one. He failed to carry out the promise. It was held that in spite of the

promise and in spite of the fact that the husband has not taken an additional wife, the

1 (1868) LR 3 HL 55 at 822 (1866) LR 1 P&D 130 p. 1333 (1961) P. 70; (1961) 1 All ER 687


marriage should be regarded as polygamous. It can be understood that the exclusion of

polygamy from the English concept of marriage has been held to extend to a marriage that,

although actually monogamous, is potentially polygamous.4

One important consequence of excluding polygamous marriage from the concept of English

marriage is that English Courts will not grant any matrimonial relief to the parties of

polygamous marriage. This was laid in the case of Hyde v. Hyde. In this case, the petitioner

was an Englishman who embraced Mormon faith. He went to Utah in the United States and

married a Mormon lady according to Mormon faith, which permits polygamy. After

cohabiting with her for three years and having children by her, he renounced Mormon faith,

came to England and became the minister of a dissenting chapel. A sentence of

excommunication from Mormon faith was pronounced against him in Utah, and his wife

married another man. He petitioned before an English Court for divorce on the ground of

adultery of his wife. Lord Penzance refused to adjudicate on the ground that the Mormon

marriage was potentially polygamous. “It is obvious”, he said, “that the matrimonial law of

this country is adapted to Christian marriages and is wholly inapplicable to polygamy. The

parties to a polygamy marriage are not entitled the remedies, the adjudication or the relief of

the matrimonial law of England.”

Recognition of Valid Polygamous Marriages in England

It has already been cited in Hyde v. Hyde, it was clearly laid down that the parties to a

polygamous marriage are not entitled to any matrimonial relief from an English Court. This is

so even if the marriage is only potentially polygamous. However, this does not mean that the

English Courts will always shut their eyes to polygamous marriages. Lord Penzance in Hyde

v. Hyde was careful to state: “this Court does not profess to decide upon the rights of

succession or legitimacy which it might be proper to accord to the issues of polygamous

unions or upon the rights and obligations in relation to third persons. All that is here intended

to be decided is that as between each other, they are not entitled to the remedies, the

adjudication or the relief of the matrimonial law in England.” Despite this clear statement of

Lord Penzance, there was a tendency in the past on the part of the Courts to disregard

polygamous marriages for all purposes on the ground that, “it is the union falsely called

marriage and does not merit recognition in a Christian country.” This disdainful attitude is

only a thing of the past.

4 This is now only of practical importance once the marriage becomes actually polygamous.


Although it is not possible to enter into a valid polygamous marriage in England, such a

marriage abroad can be regarded as valid provided it has been validly created in the eyes of

English Private international law.5 In short, it must have been contracted between parties of

full capacity and in accordance with the formal requirements of the law of the place of

celebration6. The issue then arises as to the degree of recognition to be afforded by an English

Court to such a valid polygamous marriage. The present law can be summarised by saying

that a polygamous marriage will be recognised in England as a valid marriage, even if it is

actually polygamous, unless there is some strong reason to the contrary.7 In spite of Lord

Penzance’s empathetic statement in Hyde’s case that his decision was limited to the question

of matrimonial relief, there was for many years a tendency to assume that all polygamous

marriages were wholly unrecognised by English law. However, in 1939, there was a turning

point.8 In this case, the marriage solemnised between two Hindus in India in 1880. The Hindu

Law at that time allowed plurality of wives for the husband and hence the marriage was

polygamous at its inception. Later, the spouses had joined Brahma Samaj, one of whose

tenets was monogamy. Since the husband had not taken a second wife and since by their new

religion they had accepted monogamy, the marriage at the time of the proceedings was

recognised as monogamous. Also, in the case of Baindail v. Baindail,9 the marital status of a

husband in a polygamous union was clearly recognised. In 1928, while domiciled in India,

the respondent married an Indian woman in a Hindu ceremony. The marriage was potentially

polygamous. In 1939, when his wife was still living, the respondent married the petitioner, an

English woman, in a civil ceremony in London. When the petitioner discovered the

respondent’s previous marriage through finding an invitation to the Hindu marriage, she

petitioned for a declaration that her own marriage with the respondent be declared null and

void and she be awarded custody of their child. Here, the question was what was the status of

the man at the time he married the English lady. If he was recognised as a married man, his

marriage with the English woman in England would be void. On the other hand, if the first

marriage was not recognised because of its polygamous character, he would not be a married

man in the eyes of the English law and thus the second marriage would be valid. The judge in

that case, Barnard, made a decree nisi of nullity and the respondent appealed. At appeal, the

respondent’s counsel argued that the Hindu marriage was potentially polygamous and was

5 Sec 5(2) of the Private International Law (Miscellaneous Provisions) Act, 1995.6 Proper investigation ought to be made by the Court as to the validity of a particular marriage, and as to the status of the second wife: Ramasamy v. Babar [2003] EWCA Civ 12527 Shahnaz v. Rizwan [1965] 1 QB 390 at 397; Mohamed v. Knott, [1969] 1 QB 1 at 13-148 The Sinha Peerage Claim (1939) 171 Lords’ Journal 3509 [1946] P 142 at 127-128


not therefore recognised in English law so as to render the later English marriage invalid.

Lord Greene pointed out the consequences of recognising the English marriage as valid if the

couple decided to live in India where the respondent has an Indian wife living: “The position

therefore would be that this English lady would find herself compelled in India either to leave

her husband or to share him with his Indian wife.…Is it right that the Courts of this country

should give effect to a ceremony of marriage, the result of which would be to put the

petitioner in such a position? It seems to me that effect must be given to common sense and

decency…” The Court dismissed the appeal, holding that, notwithstanding its polygamous

nature, the Hindu marriage gave the respondent the status of a married man according to the

law of his domicile and therefore that the pretended marriage with the petitioner was null and

void. The Court said that English law does not refuse recognition of polygamous marriages

for all purposes. For many purposes, the status created by a polygamous marriage would have

to be recognised. Thus Baindail v. Baindail established that polygamous marriages would be

recognised by English Courts for some purposes. Status of polygamous husband would be

recognised so that he could not contract a monogamous marriage in England subsequently.

Married status of polygamous union had been recognised by English Courts for other

purposes also:

As already mentioned, In order to provide the second wife to petition for nullity of

marriage, polygamy is recognised. Baindail v. Baindail

In order to recognise the right of the children of polygamous marriages to succeed to

property in England. Bamgbose v. .Daniel10 : The appellant’s uncle died domiciled in

Nigeria and intestate. He was said to have had nine polygamous marriages ‘in

accordance with native law and custom’. The appellant, his lawful nephew, claimed to

succeed to the whole estate, against the respondents who, as legitimate children of the

deceased born in Nigeria of his polygamous marriages, claimed to exclude him.

It was held that the respondents came within the class of persons entitled to succeed

under the English Statue of Distributions. The principle of In re Goodman’s Trusts11

applied to the children of polygamous unions: that if a child is legitimate by the law of

the country where at the time of its birth its parents were domiciled, then the English

law of succession recognises that status. However, such children cannot inherit a title

10 [1955] AC 10711 (1881) 17 Ch.D. 266


of Honour or as an heir to real property or to an entailed interest as was laid down in

the Sinha Peerage Claim

In order to enforce proprietary rights under personal law. Shahnaz v. Rizwan12 where

the right to dower was recognized and enforced: The case concerned a polygamous

marriage governed by Muslim law. The couple hailed from India. The issue was

whether the wife could ask the Court to enforce a term of the marriage contract which

stipulated the payment by the husband to the wife of a deferred Mahr in the event of

his divorcing her. This clause was enforceable under Muslim law. The Court treated

this provision purely as a contractual term. The fact that the contractual term owed its

existence to the couple’s polygamous marriage was not treated as a bar to

enforcement. The Court did not have jurisdiction to make post-divorce financial

arrangements at the time of the decision, given the polygamous nature of the

marriage. This followed from its jurisprudence on polygamy. It was important not to

classify the Mahr as some form of ancillary relief (say, in today’s practice, the

provision of a lump sump, which seems to be the Mahr’s approximate function)

although the case itself preceded the development of lump sum awards by English

courts. This was because the courts had established that it was contrary to public

policy to enforce rights under polygamous unions.

In order to accord legitimacy to children. Hashmi v. Hashmi13: The petitioner, Pamela

Joyce Hashmi married Jamil Hashmi, a Pakistani who described himself as a

bachelor, in 1957. Three children were born to them. In 1968 the petitioner prayed for

a divorce on the grounds of cruelty and desertion and sought custody and maintenance

for the children. The respondent answered that he had at all times been domiciled in

Pakistan, that he had married a Pakistani woman there in 1948 under Islamic rites, and

that the marriage was still subsisting, that the petitioner had known of this first

marriage at the time of his marriage to her, and that the marriage to the petitioner

constituted a valid polygamous marriage under Pakistani law. He denied cruelty and

desertion and sought custody of the children. At the hearing, counsel for the defendant

added a prayer for the annulment of the marriage between the petitioner and the

defendant and for the children to be declared legitimate. It was held that, the 1957

marriage being recognised by the law of the husband’s domicile (Pakistani law) as a

12 [1965] All ER 45513 [1971] 3 WLR 918


valid subsisting marriage, although it was void according to English law, English law

would recognise the children of that marriage as legitimate.

Succession of a person who has died intestate- the widow of a potentially polygamous

marriage can succeed as was held in Coleman v. Shang14 : This case was on appeal

from the Ghanaian Court of Appeal. The appellant was the sole surviving child of a

marriage under the Marriage Ordinance (Ghana) between his mother and his father,

an Osu man who died intestate. The appellant claimed that he alone was entitled to

administer his father’s estate – to the exclusion of the respondent who had married the

appellant’s father after the death of the mother in accordance with native customary

law, which recognised the existence of more than one wife or widow. There were no

special circumstances to necessitate a distinction between the position of the children

or a potentially polygamous marriage and the wives or widows of such a marriage.

The Appeal Court’s decision that there must be a joint grant to the appellant and the

respondent was upheld and the appeal was dismissed.

Statutory Provisions for the recognition of polygamous marriages

There is statutory recognition of actually and potentially polygamous marriages for the

purposes of the protection granted to a spouse by Part IV of the Family Law Act, 1996.15 It

has been held that the summary procedure, under Section 17 of the Married Women’s

Property Act 1882, for determining property disputes between husband and wife extends to

polygamous marriages.16 Statutory recognition of polygamy is also provided by social

security legislation. Regulations made under or preserved by the Social Security

Contributions and Benefits Act, 199217 now govern the present position in relation to benefits

falling within these Acts, eg widow’s benefit, maternity benefit and child benefit. The Social

Security Contributions and Benefits Act, 1992 is a consolidation statute and regulations made

under its forerunners, the Social Security Act, 1975 and the Child Benefit Act, 1976 continue

in effect. They allow a polygamous marriage to be treated as a monogamous marriage if it

has either always been actually monogamous or for any day throughout which it was, in fact,

monogamous.

14 [1961] AC 48115 S 63(5)16 Chaudary v. Chaudary [1976] Fam 14817 Ss 121 (1)(b), 147(5) as amended by the Private International Law (Miscellaneous Provisions) Act, 1995, s 8(2),Sch, para 4, and the Civil Partnership Act 2004, Sch 24(3), para 40.


The Canonist Doctrine of Indissolubility of Marriage

In the words of Cheshire, “the Canon law, purporting to be the law of God and to have

derived its principles from the Scripture imposed the doctrine of indissolubility of marriage

upon the Western Church”. Only death could dissolve a marriage. Divorce a Vinculo (by act

of parties) was prohibited. But two remedies were even then available. They were (1)

annulment of marriage; (2) divorce a mensa et thoro, i.e., judicial separation. Annulment

made marriage ab initio void. Judicial separation kept the parties indissolubly married, but

separated from bed and board. This remedy was granted for adultery, unnatural offences,

cruelty, heresy etc. Annulment granted on proof of impediments of marriage such as

prohibited degrees of relationship, want of free consent etc. the marriage was destroyed

notwithstanding coitus, and the children if any rendered illegitimate.

The Matrimonial Causes Act, 1857

This enactment effected two fundamental changes in matrimonial causes. First, it took away

matrimonial causes from the jurisdiction of the ecclesiastical courts and placed them under

the jurisdiction of the civil courts. Second, it made a complete break with the past by

empowering Courts to grant divorce a vincula: a degree of dissolution of marriage. With this,

matrimonial cause became a flourishing source of conflict of law cases. Of all matrimonial

law, the most important is divorce.

Divorce is the dissolution of a valid and subsisting marriage on grounds arising since the

celebration of marriage. The first question that arises is the one regarding jurisdiction, i.e.,

which courts are competent to pass decrees of divorce.

Jurisdiction to Grant Decrees of Divorce

The Matrimonial Causes Act, 1857 contained no rules as to the jurisdiction in divorce. The

traditional test of jurisdiction is the one established in the Privy Council decision of Le

Mesurier v. Le Mesurier.18 This case laid down that husband’s domicile at the time of the

suits was the sole test of jurisdiction. In other words, only the Courts of the country where the

husband was domiciled at the time of the suit were competent to entertain suits for

dissolution of marriage. Therefore, when suit for dissolution of marriage was instituted before

an English Court, the sole question was whether at the time of the suit the husband was

domiciled in England, Nothing else, their residence, their submission to the jurisdiction of the 18 [1895] AC 517 at 540


Court or the fact that they were domiciled elsewhere when the alleged misconduct took place,

none of these were considered relevant. Before the decision of the Privy Council in Le

Mesurier, the Court of Appeal in Niboyet v. Niboyet19 held that residence was the test of

jurisdiction. But, this decision was subject to a powerful dissent by Brett L.J., that domicile

and not residence should be the test. In Le Mesurier the Privy Council dissented from the

view of the majority in Niboyet v. Niboyet. Le Mesurier technically decided nothing with

regard to the jurisdiction of the English Court, the case being an appeal from Ceylon. But

ever since the decision of Le Mesurier it has been assumed without the question that the test

of husband’s domicile laid down in the case is right and the decision in Niboyet’s is wrong,

although Niboyet case has never been formally over ruled.

Strict adherence to the principle in Le Mesurier v. Le Mesurier, created the problem of the

deserted wife. If the husband deserted his wife, went to another country and acquired

domicile there then, the wife left in England was in a bad plight. She could not obtain divorce

in an English Court as the husband’s domicile at the time of the proceedings was not

England. To mitigate this difficulty of the deserted wives, Parliament intervened and enacted

the Matrimonial Causes Act, 1937. This Act enabled the wife to petition for divorce if she

had been deserted by the husband, provided immediately before desertion her husband was

domiciled in England. The Parliament introduced another exception to the rule in Le

Mesurier case by Section 1 of the Law Reform (Miscellaneous Provisions) Act of 1949. This

provides that the Court will have jurisdiction to entertain proceeding by the wife,

notwithstanding that the husband is not domiciled in England, if the wife is resident in

England and has been ordinarily resident there for a period of three years immediately

preceding the commencement of the proceedings. These piecemeal remedial measures could

not solve all the problems created by profound social changes; domicile still remained as the

basic concept. This led to a search for alternative factors resulting in the enactment of the

Domicile and Matrimonial Proceedings Act, 1973. Part II of this Act now provides two cases

of divorce jurisdiction, domicile and habitual residence. English Courts have jurisdiction if

either party is domiciled in England at the time when the proceedings are begun.20 Again

courts have jurisdiction if either party was habitually resident in England throughout a period

of one year up to the date when the proceedings were begun.

19 (1878) 4 PD 120 The Act abolishes the principle of unity of domicile of the husband and wife and the wife is entitled to have separate domicile during the subsistence of marriage.


This clearly shows that at present English divorce jurisdiction is based on either domicile or

habitual residence for one year. It has been pointed out that the introduction of one year’s

residence as a basis for jurisdiction may create the danger of English court being used as a

haven by those who are unable to obtain divorces in the countries of their domicile or

nationality. The broad jurisdictional bases introduced by the Act may also have the effect that

there are simultaneously several countries having jurisdiction to dissolve the marriage. It may

also contribute to limping marriages.

Recognition of Foreign Divorce Decrees

1. Recognition at Common Law

The basic common law rule was that the English Courts would recognise divorce decrees

granted by the courts of the country where the parties were domiciled at the commencement

of the proceedings. The English Courts did not recognise any decree given by a non-

domiciliary court. From this position the English courts have steadily moved forward in

favour of recognition of non-domiciliary decrees finally culminating in the fundamental

changes introduced by the Recognition of Divorces and Legal Separations Act, 1971. Much

of the discussions and the leading cases cited in text books have now only academic value.

However, we may briefly state the stages of development in the recognition of foreign

decrees of divorce. The rule that the English Courts would recognise a foreign decree of

divorce only if it was granted by the Court in which the parties were domiciled21 was settled

long before Le Mesurier’s case, and in fact this rule influenced the decision in the said case.

The English Courts adhered to this rule even after the jurisdiction of the English courts has

been broadened by statutory changes.

2. Divorce Recognised by Lex Domicilii

A foreign decree of divorce will be recognised by English Courts if it would be recognised by

the Courts of the country where the parties were domiciled at the time of the proceedings.

This principle was established by the decision in Armitage v. Attorney General.22 ‘X’ English

wife of an American citizen domiciled in New York obtained a decree of divorce from a

court in South Dakota. The divorce was granted on the ground which was insufficient both by

the law of New York and English Law. But it was proved that the divorce decree would be

21 At the commencement of the proceeding22 (1906) P 135


recognised by the New York court. The English Court recognised the divorce decree as it

would be recognised by the New York Court.

3. Reciprocal Recognition: Same Jurisdictional Circumstances – The Rule in

Travers v. Holley

The jurisdiction of the English Courts to entertain suits for divorce was considerably enlarged

by statutory provisions introduced to mitigate the problems of the deserted wife and wives

resident in England. In Travers v. Holley,23 the question arose whether the English Court

would recognise a foreign divorce where the foreign court assumed jurisdiction on the basis

of a similar Statute. The fact of the case were : the husband and wife were married in England

where they were domiciled. Subsequently they acquired the domicile of choice of New South

Wales. While there, the husband deserted the wife and came back to England where upon his

English domicile of origin revived. The wife obtained a divorce from New South Wales court

under the provisions in force in England. This divorce was recognised by the Court of Appeal

on the ground: “where there is in substance reciprocity, it would be contrary to principle and

inconsistent with comity if the Courts of this country were to refuse to recognise a

jurisdiction which mutatis mutandis they claim for themselves.”

This case extended the scope of recognition by accepting the principle that English Court

would recognise a foreign divorce decree granted in jurisdictional circumstances under which

English courts also would have assumed jurisdiction. Thus, if the petitioning wife had been

resident in the foreign jurisdiction for three years or had been deserted by the husband who

had domiciled there immediately, a divorce decree in that jurisdiction would be recognised in

England on the basis of reciprocity.

4. Factual Similarity –Extension of the Rule in Travers v. Holley

In Robinson Scott v. Robinson Scott the question arose as to whether the recognition of a

foreign divorce decree granted on the basis of residence should be founded upon legislative

or factual similarity with English statutory provisions. In this case the marriage was between

a domiciled English man and a domiciled Swiss woman. The marriage took place in

Switzerland and shortly after the marriage the husband returned to England. The wife never

left Switzerland and ultimately petitioned for divorce on the ground of disruption of

matrimonial relations. The Swiss court granted a decree on the ground that the petitioner was

23 (1953) P 246


a long resident in Switzerland. The question before the English court was whether this decree

of divorce could be recognised. There was no statute in Switzerland similar to Matrimonial

Causes Act or the Law Reform Act of England. The fact was that the petitioner was a resident

in Switzerland for more than three years when she petitioned for the divorce. Under this

factual circumstance the English Court would be competent to exercise jurisdiction by virtue

of the Law Reform Act. It was held that this factual similarity would be sufficient to apply the

rule in Travers v. Holley.

5. Combination of the Rule in Travers v. Holley with the Rule in Armitage v.

A.G.?

This question arose in Mountbatten v. Mountbatten.24 The husband and wife were domiciled

in England. The wife obtained a divorce from a Mexican court which assumed jurisdiction on

the basis of her presence in Mexico for twenty four hours. Such a decree would not be

recognised by English court, but would be recognised by the Courts in New York where

ordinarily resident for more than three years at the time of her getting the Mexican divorce.

The Husband petitioned before an English Court for a declaration that the Mexican decree

had dissolved the marriage. It was argued (1) that Travers v. Holley laid down the principle

that the English Courts would recognise a decree based on a jurisdiction they themselves

would exercise and (2) that Armitage v. A.G. laid down the principle that English Courts

would recognise a decree recognised by the Courts of lex domicilii and (3) by combining

these two principles the Mexican decree could be recognised by English Courts. The Court

declined to combine in the above manner these two principles to recognise a foreign divorce

decree.

6. The Rule of Real and Substantial Connection

In Indyka v. Indyka25 the House of Lords greatly extended the scope of recognition of foreign

divorce by introducing the principle of real and substantial connection. The facts were:

Rudolf Indyka whose domicile of origin was Czechoslovakia first married Helina in Czech.

During World War II Indyka was in the resistance movement. From 1938 to 1945 he was

fighting the Germans outside Czech and so was unable to communicate with Helina. After

the war in 1946, without returning to his home-state he settled in England and secured and

English domicile of choice. In 1949, Helina obtained a decree of divorce from Czech. Ten

24 (1959) P 4325 [1969] 1 AC 33


years later, Indyka married Rose in England. In 1965, Rose petitioned an English Court for

divorce, a proceeding which presupposed the existence of a valid marriage. But, it was

contended by Indyka that the English marriage was void as the divorce obtained by Helina

was not valid in English law. So the question was whether the decree of divorce given by the

Czech Court could be recognised in England. Helina was resident in Czech all along and so

the requirement of 3 years’ residence on the part of the wife, a jurisdictional ground for the

English court, is fully satisfied. Therefore, it would appear that the rule in Travers v. Holley

could be applied. But there was one difficulty. The difficulty was that at the date of the Czech

decree of divorce, the English Courts did not get the extended jurisdiction on the basis of the

wife’s residence for 3 years. So could the principle of reciprocity be applied retrospectively?

The House of Lords unanimously approved the rule in Travers v. Holley. The Czech decree

was also recognised as valid; but the reasons for doing so were varied.

The majority in recognising the Czech decree enunciated new principle. A foreign divorce

will be recognised in England if at the time of the proceedings there was a real and

substantial connection between the petitioner and the foreign country. Such connection could

be based upon a variety of factors for example domicile or residence not only for 3 years but

also a lesser period, nationality etc.

This test of real and substantial connections established in the Indyka case has been a subject

of severe adverse criticism. Cheshire says that the case “had the merit of widening the basis

of recognition of foreign divorces, but at the price of great uncertainity.”26 Morris says, “The

attitude of the House of Lords to the recognition of foreign divorces was liberal, realistic and

humane (but) the effect of decision has been to leave the law in a state of grave uncertainty

on matter where certainty is most desirable. A large number of people now do not know if

they are married and if so, to whom”.27

Modern English laws regarding Recognition of Foreign Divorces

The uncertainty generated by Indyka v. Indyka and the unsatisfactory nature of English law in

the matter of recognition of foreign divorces led to statutory intervention. The English law of

recognition of foreign divorces has now been codified and reformed by the Recognition of

Divorces and Legal Separation Act, 1971 as modified by the Domicile and Matrimonial

26 Cheshire, Private International Law, (9th edn) p. 37427 Morris, Conflict of Laws, 1971, p 143


proceedings Act, 1973 (Abolition of wife's dependent domicile). According to the

Recognition of Divorces and Legal Separation Act no grounds of recognition shall apply

except those laid down or preserved by the Act. Therefore all the common law grounds of

recognition are abolished except in so far as they are expressly preserved by the Act. Thus,

the real and substantial test introduced in Indyka v. Indyka is no longer applicable.

Old Pre Act grounds Preserved by the Act

A foreign decree of divorce granted by the court of a country where the parties were

domiciled at the time of institution of proceedings will be recognised by the English

Courts.

So also, those foreign divorces which are recognised as valid in the country where the

parties were domiciled at the time of institution of proceedings.

As the married woman is now capable of having a domicile different from that of her

husband, it becomes necessary to provide for cases where the parties have different

domicile at the time of institution of proceedings. Accordingly it is provided that

where one of the parties is domiciled in a country where the divorce is obtained and

the country where the other party is domiciled recognises that divorce, then such a

divorce, then such divorce will be recognised in England. Same is the case where the

divorce is recognised in both the countries where the parties were respectively

domiciled at the time of institution of proceedings. Recognition by only one

domiciliary law is not sufficient.

The Act retains the recognition of certain colonial divorces provided for in the

previous statutes.

New Grounds introduced by the Act:

The Act introduces three new grounds of recognition namely, habitual residence, nationality

and domicile in the foreign sense.

A foreign divorce will be recognised in England if at the time of institution of

proceedings; either spouse was habitually resident in the country where the divorce

was obtained.

So also, if either spouse was a national of the country where the divorce was

obtained at the time of institution of proceedings, the divorce will be recognised in


England. It appears that in case of a person with double nationality, recognition will

be granted to divorce decrees of either country of nationality.

If the law of a foreign country uses domicile as a ground of jurisdiction in divorce,

then the decrees of divorce granted in that foreign country will be recognised if

either spouse was domiciled there according to the foreign concept of domicile. It is

not necessary that any of the spouses should be domiciled in the foreign country in

the English sense of domicile.

The new grounds have been introduced with the view of maintaining the trend of liberality in

the recognition of foreign divorces, but at the same time avoiding confusion and uncertainty.

It should be noted, that the term habitual residence has not been defined in the Act nor is any

length of residence specified or required in the Act. What is required is habitual residence and

not mere residence and so the duration and continuity of the residence and other factors

which point to durability between a person and his residence would certainly be relevant in

determining whether residence is habitual or not.

Divorce granted elsewhere in the British Isles

According to section 1 of the Act, a decree of divorce granted in Scotland, Northern Ireland,

Channel Island and the Isle of Man will be recognised in England on or after the first January

1972

Recognition of Extra- Judicial Divorces under Common Law

There are divorces secured through sources other than a court, where there is no application

of judicial mind before the divorce is allowed. Some religious laws allow one of the parties to

a marriage to divorce the other by unilateral acts, eg., Ghett28, Talak etc. The question arises

whether such extra judicial divorces will be recognised in England assuming that the parties

are domiciled in a country under whose laws such divorces are permitted.

Originally, the English Courts were reluctant to recognise such divorces. For instance in the

Hammersmith Marriage case ( R v. Hammmersmith Superintendent Registrar of Marriages

Ex parte, Mir Anwaruddin) 29 The husband domiciled in India married an English woman in

England in a secular marriage. The wife deserted him, he tried to reconcile and even went to

an Indian court to order for resumption of conjugal rights. He later divorced his wife by a 28 Letter of divorce given to a wife by a Jewish husband.29 [1917] 1 KB 364 CA


talak pronounced in London in the presence of witnesses but in the absence of his wife. The

court of appeal refused to recognise this divorce mainly for three reasons – (a) it had not been

granted by a court. (b) talak divorce was applicable only to Muslim marriages celebrated in

England and (c) it was contrary to the natural justice

Later the English courts began to show a tendency to recognise extra judicial divorces. In

Russ v. Russ,30 a Mohammedan domiciled in Egypt married an English woman in England.

They lived in Egypt for 19 years and then the husband divorced the wife by talak declared

before an officer of the Sharia court and in the presence of both the witnesses and the wife.

The Court of Appeal distinguished the earlier decision in Hammersmith Marriage case on

several grounds and recognised the talak divorce.

The position became clear with the decision of Qureshi v. Qureshi.31 In this case the spouses

were domiciled in Pakistan but the marriage was celebrated in England. The husband

purported to divorce the wife by a talak declared in England. The Court recognised the

divorce holding that it was immaterial that the religious divorce took place in England

without any semblance of judicial proceedings, dissolving a marriage which took place in

England.

All these were cases where the parties were domiciled in countries where such extra judicial

divorces were recognised. However, the position is different if the husband was at the time of

the divorce domiciled in England. In Manning v. Manning32 such a situation arose and the

courts refused to recognise the divorce.

Extra Judicial Divorces under the Act of 1971

a. Those obtained outside the British Isles

In English law the recognition of extra judicial divorces is governed by the provisions of the

Recognition of divorces and legal Separations Act, 1971. The rules laid down in this Act

apply to extra judicial divorces also. The question as to whether a particular kind of extra

judicial divorce can be recognised by the Act would however depend on the situations, in

view of the way the Act has been drafted. Under certain situations some form of proceedings

are contemplated and it is doubtful whether the talak form of divorces could be included

30 [1962] 3 All ER 19331 [1971] 1 All ER 32532 [1958] P 112


within the divorces coming under these situations. “Overseas divorces” as defined in the Act

for the above situations contemplate judicial or other proceedings. This would mean that for

the recognition of extra judicial divorces some act external to the parties themselves such as

registration, conciliation, proceedings etc. are necessary. Moreover, the talak kind of divorces

obtained outside British Isle could be denied recognition on the ground of lack of notice of

the proceedings.33 The situation in the above cases involves the fact that one or both the

parties is or are domiciled or habitually resident in the country where the divorce has been

effected. In Quazi v. Quazi.34 This case concerned a Muslim couple who became nationals of

Pakistan but moved to Thailand, where they performed a Khula (Muslim divorce initiated by

the wife and agreed to by the husband, all in writing, with the wife renouncing all rights

against the husband). The husband then came to the UK because of unrest in the

subcontinent, thinking it best for the education of the children, but the wife initially stayed in

Pakistan. She later arrived with a return ticket and, soon after her arrival, the husband

travelled to Pakistan to effect a divorce. The wife filed a divorce petition in the English court

on the ground of the husband’s unreasonable behaviour. The Khula was disregarded in the

House of Lords, with the Court concentrating on the later Talaq, which it determined was

eligible for recognition. The case established that divorce under the Pakistani Muslim Family

Laws Ordinance (VIII of 1961) which requires the husband to give notice to a public

authority, constitutes divorce by proceedings to be governed by s.2 of the Recognition of

Divorces and Legal Separations Act 1971 (as distinct from a non-proceedings divorce

governed by common law rules preserved by s.6). The proceedings in question here were

officially recognised and sanctioned, and were necessary for the divorce to take effect.

But, in situations where the parties are (or one of the parties) domiciled in England extra

judicial divorce including those of the talak kind may be recognised if obtained overseas.

Thus, a talak obtained in Pakistan by a husband who is a Pakistani national but domiciled in

England will be recognised.

Such a divorce or legal separation will be entitled to recognition in England if it is obtained in

a country outside the British Isles, will be entitled to recognition in England if

It is effective under the law of that country35

33 Section 8(2)34 [1980] AC 74435 Family law Act, 1986 s. 46 (2)(a)


On the date of which it was obtained36 either party to the marriage was domiciled in

that country37 or either party to the marriage was domiciled in that country and the

other party was domiciled in a country whose law the decree is recognised as valid38

However, recognition will not be extended if either party to the marriage was habitually

resident in the United Kingdom throughout the period of one year immediately pre-ceding

the date on which it was obtained.39 This provision is designed to prevent easy

circumvention of the rule that no extra judicial divorce can be obtained in England; an

English resident obtaining such a divorce on a short trip abroad will find that it will not be

recognised.

b. Those obtained within the British Isles

The position under the Common law was that extra judicial divorces even if obtained in

England would be recognised by the lex domicilii, eg. Qureshi v. Qureshi. Nothing in the

Recognition of Divorces and Legal Separations Act materially altered this position because

Section 1 of the Act (which applies to divorce decrees in British Isles) applies only to divorce

decree granted under the law of any part of the British Isles. But now, it is provided in the

Domicile and Matrimonial proceedings Act 197340 that in cases of divorces obtained after

1973 “no proceedings in the United Kingdom, the Channel Island or the Isle of Man shall be

regarded as validly dissolving a marriage unless instituted in the courts of law of one of those

countries.” The present position therefore is an extra judicial divorce obtained in England or

elsewhere in the British Isles will not be recognised by the English Courts.

Traditional rules of recognition: Nullity decrees

Before the enforcement of Part II of the Family Law Act 1986, the recognition of foreign

nullity decrees was governed by the common law rules which were found unsatisfactory. On

the recommendation of the English and Scottish Law Commissions, the 1986 Act provided a

comprehensive statutory scheme which would include divorces and legal separations as well

as annulments. The provision of this act, applying to the nullity of marriages has a

retrospective effect.41 However the provisions do not affect any property to which any person 36 s. 46 (3)(b)37 s. 46 (2)(b)(i)38 s. 46 (2)(b)(ii)39 s. 46 (2)(c) 40 Section 16(1)(3)41 Family Law Act, 1986 s. 52


became entitled before that date or affect any property to which any person became entitled

before that date or affect the recognition of an annulment if that matter had been decided by

any competent court in the British Isles before that date.42

Requirements for recognition of nullity decrees

The Act distinguishes between annulments obtained by means of judicial or other

proceedings and “non-proceedings” annulments. An overseas annulment obtained by means

of proceedings is entitled to recognition in England if

It is effective under the law of that country43

Either at the date of commencement of proceedings44 either party to the marriage was

domiciled in that country,45 either party to the marriage was habitually resident or

domiciled in, was a national of that country46

Grounds of non-recognition of foreign divorces

A foreign decree of divorce, although given by a Court having jurisdiction according to the

rules of private international law, could, nevertheless, be attacked on certain grounds and the

English courts have developed some criteria on the basis of which such foreign decrees of

divorce would be denied recognition in England. But, the English courts have been careful to

confine these grounds of non-recognition within very narrow limits.

The passage which is now quoted most often and accepted as the greatest authority is the

passage in Pemberton v. Hughes, 47 in which Lindley, M.R. states what is the actual practice

of the court. I will not read the whole of the passage, but I will read a portion of it: "If a

judgment is pronounced by a foreign court over persons within its jurisdiction and in a matter

with which it is competent to deal, English courts never investigate the propriety of the

proceedings in the foreign court, unless they offend against English views of substantial

justice. All that the English courts look into is the finality of the judgment and the jurisdiction

of the Court.” The English courts refused recognition, if any of the following grounds were

made out: (1) the divorce decree was obtained by fraud – fraud of the petitioner as to the

42 S. 52(2)43 Family law Act, 1986 s. 46 (1)(a)44 s. 46 (3)(a)45 s. 46 (2)(b)(i)46 S 46(1)(b), (4)47 80 L. T. Rep. 369; (1899) 1 Ch. 791, at p. 790


jurisdiction of the Court, but not as to the merits of the petition. (2) Divorce decree was

contrary to the English conception of natural justice.

Grounds of Non recognition under the 1971 Act

Recognition of foreign divorce decrees is now regulated by the Recognition of Divorces and

Judicial Separation Act, 1971. The grounds are strictly restricted to those specifically

provided for in the Act. Section 8 of the Act lays down the following grounds of non-

recognition of foreign divorce decrees

i. Irreconcilable Judgments

A divorce, legal separation or annulment may be refused recognition if it was granted at a

time when it was irreconcilable with a previous decision given or entitled to recognition in

England as to the subsistence or validity of the marriage of parties.48 So far as nullity is

concerned this rule adopts the principle established by the House of Lords in Vervaeke v.

Smith49 where a foreign decree annulling a marriage for lack of consent was refused

recognition in England because it was inconsistent with a prior English decision refusing to

annul the same marriage on substantially the same grounds

ii. No subsisting Marriage

This ground applies to divorces or judicial separations but not to annulments. A legal

separation or divorce may be refused recognition in England if it was granted at a time when,

according to English law there was no subsisting marriage between the parties.50

iii. Want of notice of the proceedings

An overseas divorce, annulment or judicial separation obtained by means of judicial or other

proceedings may be refused recognition in England on the ground of want of proper notice of

the proceedings to a party to the marriage, that is, without such steps having been taken for

giving notice of the proceedings to a party to the marriage51 as, having regard to the nature of

proceedings and all the circumstances, should reasonably have been taken.52 This ground has

long been familiar to the English judges; and since non recognition on this ground is

discretionary under the Act, some guidance may still be derived from a case law before the 48 FLA, 1986 s. 51(1)49 [1983] 1 AC 14550 FLA, 1985, s. 51(2)51 Not limited to the respondent spouse as was the predecessor provision : RDLS Act, 1971 s. 8(2)(a)(i) repealed52 FLA,1986 s. 51(3)(a)(i)


Act. It was at one supposed that a foreign divorce could never be recognised in England if the

respondent has insufficient notice of the proceedings to enable him to defend them.53

Recognition is most likely to be refused if the want of the notice is combined with fraud, as

where the petitioner falsely tells the foreign court that he does not know the respondent’s

address.54

iv. Want of opportunity to take part in the proceedings


proceedings may be refused recognition in England if it was obtained without a party to the

marriage having been given (for any reason other than lack of notice) such opportunity to

take part in the proceedings as, having regard to the nature of proceedings and all

circumstances, he should reasonably have been given.55 There are very few reported cases in

which a party to foreign matrimonial proceedings, while receiving notice of the proceedings,

was denied an opportunity to take part. In Newmarch v. Newmarch,56 failure by the wife’s

Australian solicitors to file an answer to the husband’s petition as instructed, so that the suit

went undefended, was treated as a ground for not recognising the decree under this head: but

in all circumstances which included the fact that the petition could not have been successfully

opposed, the decree was recognised. In Mitford v. Mitford,57 a German nullity decree was

recognised in England, although the English respondent could not be personally heard

because of war conditions. In two cases, a German court granted a divorce although the

respondent was resident in England and could not be personally heard for the same reason:

but in each case he received no notice of the proceedings.58

The Act is concerned not only with the existence of an opportunity to take part but also with

its quality. In Joyce v. Joyce,59 a husband who was in arrears in respect of payments to his

wife under a maintenance order petitioned for divorce in Quebec; the wife was unable to

afford to travel to Quebec, and could not obtain legal aid from either the English or Quebec

authorities. Despite the husband’s remarriage, the divorce was refused recognition in

England.

53 Shaw v. Att. Gen (1870) LR 2 P&D 15654 Sabbagh v. Sabbagh, [1985] FLR 2955 FLA 1986 ss. 51(3)(a)(ii), 54(1)56 [1978] Fam 79 Cf57 [1923] P 13058 Igra v. Igra [1951] P 404; Re Meyer [1971] P 29859 [1979] Fam 93


v. Want of documentation in non- proceedings cases


proceedings may be refused recognition in England on the ground of the absence of an

official document certifying (a) its effectiveness under the law of the country in which it was

obtained, or (b) where relevant60 that it is recognised as valid in another country in which

either party was domiciled.61

vi. Recognition is contrary to public policy


proceedings may be refused recognition in England if its recognition would be manifestly

contrary to public policy.62 In Kendall v. Kendall,63 the wife was deceived by the husband’s

lawyers into applying for divorce which she did not want in language she did not understand.

It was held that recognition would be refused in England on the ground of public policy. This

appears to be the only reported case in which a foreign divorce has been refused recognition

solely on this ground.

Recognition of foreign decrees

English courts are not bound to treat as conclusive a decree of presumption of death made by

a foreign court, even a court of the domicile,64 unless it is accompanied by an order vesting

the deceased’s property in someone, e.g. an administrator,65 or [perhaps] by a decree of

dissolution of marriage. But they will probably do so in order to avoid a limping marriage if

the foreign court is that of the domicile, or if (mutatis mutandis) the English court would have

had jurisdiction in the circumstances. Thus, in Szemik v. Gryla66 the husband and wife were

Polish nationals domiciled in Poland where they married in 1936. In 1947 the wife obtained a

declaration from a Polish court that the husband died in 1942 and she remarried in 1953. By

Polish Law the declaration entitled the wife to remarry and her remarriage dissolved her first

marriage. In fact the husband was not dead but was living in England where he had acquired

60 FLA,1986 s. 46(2)(b)(ii)61 Ss. 51(3)(b), (4), 54(1)62 S. 51(3)(c)63 [1977] Fam 20864 In the Goods of Wolf [1948] P 6665 In the Goods of Spenceley [1892] P 25566 (1965) 109 SJ 175


an English domicile in 1946. Sacrman J. recognised the Polish declaration and remarriage as

having dissolved the first marriage.

Conclusion

In today’s globalised world where parties located in different countries select business

friendly jurisdictions to submit their respective cases; the case for a standardisation of

requirements for enforcing foreign judgments is strong. The work done so far is not

sufficient. This century demands a unified piece of legislation to help build and develop a

business-friendly environment for the recognition and enforcement of foreign judgments.

In the modern era, where people prefer to get married in exotic places, care should be taken

by the Courts in determining what could be the result in case of any matrimonial proceedings.

It is essential for the Legislatures to enact statutes which look into such matters in detail and

resolve to solve any problem arising in cases of marriages that occur abroad or fall under any

of the criteria that have been mentioned earlier.


Bibliography

Morris, The Conflict of Laws, Sweet and Maxwel (7th edn.,2010)

Paras Diwan, Peeyushi Diwan, Private International Law, Deep and Deep

Publications (4th edn.,1998)

Cheshire, North and Fawcett, Private International Law, Oxford University Press,

(14th edn., 2008)

Law Commission Report No. 42, Family Law Report on Polygamous Marriages,

printed on 2nd February, 1971

David Hodson, Recognition Of Foreign Marriages And Divorces

Prakash Shah, Attitudes to polygamy in English law

Andres E Onetto, Enforcement of foreign judgments: a comparative analysis of

common law and civil law

Ralf Michaels, Recognition and Enforcement of Foreign Judgments


roshni- 620 recognition of foreign judgments and decrees on marriage

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