NOTES OF CASES
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00836.x |
| Published date | 01 March 1985 |
| Date | 01 March 1985 |
NOTES
OF
CASES
THE
COURT
OF
APPEAL
AND
NON-JUDICIAL DIVORCES
UNDER classical Islamic law talaq divorce takes effect when a
husband pronounces unequivocally three times his intention to
repudiate his marriage. In some jurisdictions the declaration must
be followed by compliance with formalities imposed by the state.
In Pakistan, for example, section
7
of the Muslim Family Laws
Ordinance
1961
requires the husband to give notice of the
pronouncement both to the Chairman of the appropriate Union
Council and to the wife. The Chairman must then set up an
Arbitration Council to encourage reconciliation.
If
this fails, the
divorce becomes effective
90
days after delivery of notice. Following
the substantial immigration of Muslims into the United Kingdom in
recent years, the English courts have been required on a number
of occasions to decide whether to recognise these divorces. In
Quazi
v.
Quad
the House
of
Lords held that a talaq pronounced
in Pakistan by a Pakistani national who had complied with the
requirements imposed by the Ordinance was entitled to recognition.
However, talaq divorces are not invariably recognised. In the
recent cases of
R.
v.
Secretary of State for the Home Department,
ex parte Fatima,
R.
v.
Secretary
of
State for the Home Department,
ex parte
Bil
and
Chaudhary
v.
Chaudhary3
the Court of Appeal
refused recognition.
The decisions are of considerable importance in view of the size
of the Pakistani community in England. Although a divorce in the
English court would be recognised in Pakistan, a Pakistani national
resident in this country may prefer to obtain a divorce by talaq.
The principal advantage to the husband has in the past been that
the English courts have had no jurisdiction to grant ancillary relief
after foreign di~orce.~ Part I11 of the Matrimonial and Family
Proceedings Act
1984
has now conferred such a power on the
courts, and, when its provisions come into force, one incentive to
divorce by talaq will di~appear.~ The device, however, will continue
to enable a husband to terminate his marriage by a procedure
which is quick, convenient and inexpensive. If, instead, he petitions
in England, he may find that his wife in Pakistan elects to defend
the proceedings. Should she do
so,
she would have to join a
lengthy queue for an entry clearance, as a result of which a divorce
hearing would be considerably delayed.6
At the time of writing
a
date on which these provisions
will
come into force has yet
See
J.
M.
Evans,
Immigration
Law
(2nd ed., 1983), pp.124-131.
to be appointed.
212
Mar.
19851
NOTES
OF
CASES
213
The consequences of failure to recognise such a divorce may be
very serious. If the husband re-marries in Pakistan, his second
“wife” will be unable to obtain an entry clearance in order to join
him in England.
If
his fiancCe seeks entry into the United Kingdom,
she will be refused if the immigration officer is not satisfied that
the marriage has been dissolved under English law. She must then
return to her community where she may face personal and financial
embarrassment.’ Outside the context of immigration, such matters
as social security entitlement and income tax allowances may also
be affected. It is, therefore, highly desirable that the rules for
recognition should be certain and clear.
At common law a non-judicial divorce would be recognised if it
had been obtained in or was recognised by the law of the country
of the spouses’ domicile.8 A talaq might, therefore, qualify for
recognition even if it had been pronounced in England. The
position, however, was greatly complicated by the Recognition of
Divorces and Legal Separations Act
1971
and the Domicile and
Matrimonial Proceedings Act
1973
.g
One complication arises from
the fact that the
1971
Act draws a distinction between “overseas
divorces” and “other divorces obtained outside the British Isles.”1o
The former are those divorces which qualify for recognition
under sections
2-5,
which implement the Hague Convention on
Recognition of Divorces and Legal Separations. The latter are
those entitled to recognition under section
6,
which preserves the
common law rules. Section
2
defines overseas divorces as those
which
“(a)
have been obtained by means of judicial or other
proceedings in any country outside the British Isles and
(b)
are
effective under the law of that country.” Under section
3(1)
such a
divorce will be recognised
“if,
at the date of the institution of the
proceedings in the country in which it was obtained” either spouse
was habitually resident in or a national of that country. Section
6
has been substituted by section
2
of the
1973
Act to provide for the
situation where spouses are domiciled in different countries.”
Section
8(2)(b)
gives the court a discretion to refuse to recognise
an otherwise valid foreign divorce on the ground that recognition
would manifestly be contrary to public policy.
The Acts also draw a distinction between divorces purported
to
have been obtained abroad and in the British Isles. Although the
’
A.
Wilson,
Finding a Voice
(1978), Chap.
IV.
Har-Shefi
v.
Har-Shefi
(No. 2)
[1953]
P.
220;
Rurs
v.
Russ
[1964]
P.
315;
Qureshi
v.
Qureshi
[1972] Fam. 173.
For discussion see North,
The Private International Law
of
Matrimonial Causes in the
British
Isles
and the Republic
of
Ireland
(1977), pp.223
et seq.;
Moms,
The Conflict
of
Laws
(3rd ed., 1984), pp.196
el seq.
lo
See s.lO(4).
l1
Under s.6(3) a divorce
will
be recognised if it was obtained in a country in which
one spouse was at the material time domiciled and was recognised as valid under the law
of domicile
of
the other. If the divorce was obtained in
a
country
in
which neither spouse
was at the material time domiciled, it must be recognised under the law
of
domicile of
each if it is to qualify for recognition.
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