Roshni- 620 Recognition of Foreign Judgments and Decrees on Marriage
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Transcript of 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
National University of Advanced Legal StudiesPage 2
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
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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.
National University of Advanced Legal StudiesPage 4
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
National University of Advanced Legal StudiesPage 5
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
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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 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
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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 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.
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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 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
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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.
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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 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
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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 (1959) P 4325 [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
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
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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
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
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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
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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)
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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
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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
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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)
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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
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 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
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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 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
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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.
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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
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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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