Conflict of Laws

Recognition of Foreign Judgments and Decrees on Marriage

ROSHNI K T V Semester 620

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. 2. 3. 4. 5. 6. Recognition at Common Law .................................................................................................... 11 Divorce Recognised by Lex Domicilii ......................................................................................... 11 Reciprocal Recognition: Same Jurisdictional Circumstances The Rule in Travers v. Holley ... 12 Factual Similarity Extension of the Rule in Travers v. Holley .................................................. 12 Combination of the Rule in Travers v. Holley with the Rule in Armitage v. A.G.? .................... 13 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. b. Those obtained outside the British Isles ................................................................................... 17 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. ii. iii. iv. v. vi. Irreconcilable Judgments ...................................................................................................... 21 No subsisting Marriage ......................................................................................................... 21 Want of notice of the proceedings ....................................................................................... 21 Want of opportunity to take part in the proceedings .......................................................... 22 Want of documentation in non- proceedings cases ............................................................. 23 Recognition is contrary to public policy ................................................................................ 23

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

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Conclusion ............................................................................................................................................. 24 Bibliography .......................................................................................................................................... 25

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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 2

(1868) LR 3 HL 55 at 82 (1866) LR 1 P&D 130 p. 133 3 (1961) P. 70; (1961) 1 All ER 687

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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.

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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 Penzances empathetic statement in Hydes 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 respondents 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 respondents counsel argued that the Hindu marriage was potentially polygamous and was
5 6

Sec 5(2) of the Private International Law (Miscellaneous Provisions) Act, 1995. 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 1252 7 Shahnaz v. Rizwan [1965] 1 QB 390 at 397; Mohamed v. Knott, [1969] 1 QB 1 at 13-14 8 The Sinha Peerage Claim (1939) 171 Lords Journal 350 9 [1946] P 142 at 127-128

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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 appellants 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 Goodmans 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 11

[1955] AC 107 (1881) 17 Ch.D. 266

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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 couples 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 todays practice, the provision of a lump sump, which seems to be the Mahrs 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 husbands domicile (Pakistani law) as a

12 13

[1965] All ER 455 [1971] 3 WLR 918

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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 fathers estate to the exclusion of the respondent who had married the appellants 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 Courts 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 Womens 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 widows 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 15

[1961] AC 481 S 63(5) 16 Chaudary v. Chaudary [1976] Fam 148 17 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.

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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 husbands 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
18

[1895] AC 517 at 540

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domiciled in England, Nothing else, their residence, their submission to the jurisdiction of the 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 husbands domicile laid down in the case is right and the decision in Niboyets 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 husbands 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 20

(1878) 4 PD 1 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.

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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 years 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 nondomiciliary 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 Mesuriers 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 22

At the commencement of the proceeding (1906) P 135

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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

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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 25

(1959) P 43 [1969] 1 AC 33

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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 wifes 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 27

Cheshire, Private International Law, (9th edn) p. 374 Morris, Conflict of Laws, 1971, p 143

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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

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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
28 29

Letter of divorce given to a wife by a Jewish husband. [1917] 1 KB 364 CA

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an Indian court to order for resumption of conjugal rights. He later divorced his wife by a 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
30 31

[1962] 3 All ER 193 [1971] 1 All ER 325 32 [1958] P 112

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

33 34

Section 8(2) [1980] AC 744

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It is effective under the law of that country35 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

35 36

Family law Act, 1986 s. 46 (2)(a) 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)

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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 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

41 42

Family Law Act, 1986 s. 52 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

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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 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 nonrecognition 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
48 49

FLA, 1986 s. 51(1) [1983] 1 AC 145 50 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) repealed

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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 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 respondents address.54 iv. Want of opportunity to take part in the proceedings

An overseas divorce, annulment or judicial separation obtained by means of judicial or other 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 wifes Australian solicitors to file an answer to the husbands 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
52 53

FLA,1986 s. 51(3)(a)(i) Shaw v. Att. Gen (1870) LR 2 P&D 156 54 Sabbagh v. Sabbagh, [1985] FLR 29 55 FLA 1986 ss. 51(3)(a)(ii), 54(1) 56 [1978] Fam 79 Cf 57 [1923] P 130 58 Igra v. Igra [1951] P 404; Re Meyer [1971] P 298 59 [1979] Fam 93

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afford to travel to Quebec, and could not obtain legal aid from either the English or Quebec authorities. Despite the husbands remarriage, the divorce was refused recognition in England. v. Want of documentation in non- proceedings cases

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 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

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

60 61

FLA,1986 s. 46(2)(b)(ii) Ss. 51(3)(b), (4), 54(1) 62 S. 51(3)(c) 63 [1977] Fam 208 64 In the Goods of Wolf [1948] P 66 65 In the Goods of Spenceley [1892] P 255 66 (1965) 109 SJ 175

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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 an English domicile in 1946. Sacrman J. recognised the Polish declaration and remarriage as having dissolved the first marriage.

Conclusion
In todays 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.

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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

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