NOTES OF CASES
| Published date | 01 March 1980 |
| DOI | http://doi.org/10.1111/j.1468-2230.1980.tb01590.x |
| Date | 01 March 1980 |
NOTES
OF
CASES
RECOGNITION
OF
NON-JUDICIAL DIVORCES
IN
Quazi
v.
Quazil
the House
of
Lords has for the first
time
considered the question of recognition by the English courts
of
non-judicial divorces. At common law, this was a relatively straight-
forward matter, but it has been
a
perplexing problem ever
since
the
Recognition of Divorces and Legal Separations Act
1971
(“the
Recognition Act
”)
and the Domicile and Matrimonial Proceedings
Act
1973
(“
the Domicile Act
”)
came into force.2 Thc source of the
problem is the use in these Acts of the words “proceeding” and
“
proceedings.”
The
Legal
Background
(a)
At
common
law.
The common law, after initial uncertainty,
accorded recognition to non-judicial divorces, even where they were
obtained
in
England,
so
long as they were valid according to the law
of the parties’ domicile.8
Thus,
English courts recognised divorces by
rdak
(a Muslim divorce obtainable at the will of the husband alone,
in some cases with a very minimum
of
formalities),* by
ghet
(a Jewish
bill
of
div~rcement),~ by a
Greek
ecclesiastical decree of dissolution,B
by administrative pr~cess,~ and by a divorce agreement.” The argument
for recognition
of
such divorces was best put by Dr. Morris in a single
pithy sentence:
“
If the cause for the divorce is immaterial,
so
ought
the method to be.”
(b)
The Recognition
Act.
Since the Recognition Act came into
force on January
1,
1972,
there have been two possible ways
in
which
a non-judicial divorce can claim recognition in this country. These
are either
(1)
by satisfying the conditions for the recognition
of
“overseas divorces” contained in sections
2-5
of the Act,
or
(2)
by conforming to those common law rules of recognition which are
preserved by section
6
of
the Act, by which the English courts
1
119791
3
W.L.R.
833; [I9791 3
All
E.R.
897.
*
For
thc
best
discussion
of
this problem, see North,
Private International
Law
of
Matrimor6al Causes in the British Isles and the RepuMic
of
Ireland,
Chap.
11,
where
further references can be found.
J
Dicey and
Morris,
Conflict of
Laws
(9th
ed.,
1973),
pp.
327-328;
Cheshire
&
North,
Private International
Law
(10th
ed.,
1979),
pp.
378-379;
North,
op. cit.
at
4
e.g. El-Ripmi
v.
El-Riyami
119581
C.L.Y.
497;
Mahbub
v.
Mahbub
(1964)
108
6
Har-Shefi
v.
Har-Shefi
(No.
2)
[I9531
P.
220.
8
Eleftheriou
v.
Eleftheriou, The Times,
February
21,
1W.
7
Manning
v.
Manning
[I9581
P.
112.
8
Ratanachoi
v.
Rataiiachai, The Times,
June 4,
1960;
Varanand
v.
Varanand
9
Dicey and
Moms,
017.
cit.
at
p.
328
(quoted
with
approval by Sir Jocelyn Simon
p.
222.
S.J.
337;
Russ
v.
Russ 119641
P.
315;
Qureshi
V.
Qureshi
119721
Fam.
173.
(1964)
108
S.J.
693;
Lee
v.
Lau
[1%7]
P.
14.
P.
in
Qureshi
v.
Qureshi
[I9721
Fam.
173,
199).
202
Mar. 19801
NOTES
OF
CASES
203
recognised
a
divorce obtained in the country of the spouses’ domicile
or
obtained elsewhere and recognised as valid in that country.
Sections
2-5
of
the Act have introduced a statutory code
for
the
recognition
of
“
overseas divorces
”
which stands side by side with
the common law rules preserved by section
6.
The code provides for
such divorces to be recognised if at the date of the institution of the
proceedings eilther spouse was
(1)
habitually resident in the country
where the divorce was obtained,
or
(2)
its national,
or
(3)
(where its
law uses domicile as a ground of jurisdiction in divorce) domiciled
there within the meaning of its law. Section
2
of the Act defines
‘‘
overseas divorces
”
as divorces which
“
(a) have been obtained by
means of judicial
or other proceedings
lo
in any country outside the
British Isles; and (b) are effective under the law
of
that country.”
The question which arises here is the meaning of
“
other proceedings.”
These words are clearly intended to include at least some kinds
of
non-judicial divorces, but it
is
unolear to what extent, if at all, the
word
“
proceedings
”
limits the kind
of
non-judicial divorces
to
be
recognised under the statutory code.
One of the purposes of the Recognition Act (as its preamble makes
plain) was to enable the United Kingdom
to
ratify the Hague Conven-
tion on the Recognition
of
Divorces and Legal Separations of
1970
(“
the Convention
”).I1
Section
2
of the Act is modelled on Article
1
of the Convention, the material part of which provides for the
Convention
to
apply
“
to
the
recognition in one Contracting State of
divorces
.
. .
obtained in another Contracting State which follow
judicial
or
other proceedings officially recognised in that State and
which are legally effective there.” The record
of
the discussions at
the Hague Conference
l2
shows that Article
1
was in fact designed
to shut out a whole range of non-judicial divorces from the Conven-
tion, even where such divorces were officially recognised and legally
effective under the law
of
the country in which they were obtained.
The conference actually rejected an amendment to Article
1
proposed
by the United Kingdom which would have made the Convention
applicable “whatever the forms
or
methods
of
divorce which the
State provides
or
permits.” The report on the Convention,ls after
explaining that the reference in Article
1
to
“
judicial1
or
other
pro-
ceedings
”
is designed to include within the Convention divorces
resulting from legislative, administrative
or
religious acts, states that
“
proceedings
”
are
“
an objective notion,” involving
“
a minimum
of acts, steps
or
formalities required to
be
taken by established rules
10
Italics suoolied.
11
The text-bf the Convention (in both English and French) is in the Hague
Conference on Private International
Law,
Actes et documents
de
la
ontiPrne
session,
Tome
I1
(1970).
D.
201.
12
Ibid.
esp..at pp. 94-95, 95-101.
1s
lbid.
at pp.
210-223.
The Rapporteurs were Judge Pierre Bellet and Professor
Berthold Goldman. According to the practice of the conference, the report is
of
persuasive authority as
to
the interpretation
of
the Convention. The English translation
of the report has, presumably in
error,
bcen omitted from the volume.
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