Recognition Of Foreign Unilateral Divorces In The English Conflict Of Laws
| Date | 01 September 1965 |
| DOI | http://doi.org/10.1111/j.1468-2230.1965.tb02904.x |
| Author | Lakshmi Swaminathan |
| Published date | 01 September 1965 |
RECOGNITION OF FOREIGN UNILATERAL
DIVORCES
IN
THE
ENGLISH CONFLICT
OF LAWS
I. INTRODUCTION
THE
fundamental common law principle as regards a foreign divorce
is that jurisdiction is confined to the courts
of
the foreign domicile
of the parties. This seems to be based on social considerations, as
was said by
Lord
Watson in
Le Mesurier
v.
Le Mesurier,’
$$.
. .
the only fair and satisfactory rule to adopt
on
this matter
of
jurisdiction is to insist upon the parties in all cases referring
their matrimonial differences to the courts of the country in
which they are domiciled, Different communities have different
views and laws respecting matrimonial obligations, and a differ-
ent estimate of the causes which should justify divorce.
It
is both just and reasonable, therefore, that the differences of
married people should be adjusted in accordance with the laws
of the community to which they belong, and dealt with by the
tribunals which alone can administer the laws.”
No
doubt
it
is
66
just and reasonable
”
that matrimonial differ-
ences should be determined by the domiciliary law of the parties,
as the law with which they are most closely associated. However,
some decisions have derogated from this principle, and the English
courts have held that certain methods
of
divorce adopted in some
foreign countries will not be recognised as valid here. Unilateral
acts of divorce, for example, the
talak
under Moslem law
or
the
Jewish
gett,
have raised important questions whether an English
court would recognise these acts as divorces obtained according to
the
lea:
domicilii
of the parties.
11.
METHOD
OF
DIVORCE
It
had been formerly held by the court in
Maher
v.
Maher
that it
would not recognise the validity
of
a divorce by
talak
obtained in
Egypt, to dissolve
a
marriage celebrated
in
England. In that case
a marriage celebrated in England between an Englishwoman domi-
ciled in England and a Moslem man domiciled in Egypt was later
dissolved by the husband pronouncing
a
unilateral declaration of
talak
before witnesses
in
the appropriate
court
in
Egypt. By
Mohammedan law, this form of divorce was considered valid and
1
118951
A.C.
617
at p.
6%);
Hafoey
v.
Farnie
(1882)
8
App.Cas.
43;
Bate?
V.
2
[19.51]
P.
342,
now
overruled
by
the
decision
in
Russ
(0786.
Geffers)
V.
Russ
Bater
[1906]
P.
209.
[1964]
P.
315
(C.A.).
540
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