::Overseas Divorce Decrees in Pakistan..Recognised in UK

2.1 The UK law before 1988

2.1.1 The courts ruled in the case of Indyka v Indyka (1966) that a foreign divorce could be recognised by the English courts if one of the parties had a real and substantial connection with the country in which the decree was granted. The Judge held that when an alteration in English law widens the divorce jurisdiction of the English courts, the correspondingly widened recognition of decrees pronounced abroad applies only after, and not before, the change in English municipal law. Recognition of, in this case, a Czech divorce, pronounced in January 1949, had been sought on the basis that the Czech court’s jurisdiction would have been recognised if the Law Reform (Miscellaneous Provisions) Act 1949 had governed the question of jurisdiction. But since that Act had not taken effect until December 1949, and had no retrospective effect, the Czech decree could not be recognised by English law.

2.1.2 It has not been necessary to quote this ruling since the Recognition of Divorces and Legal Separations Act 1971 came into force on 1 January 1972. The 1971 Act provided the first statutory criteria for the recognition of overseas divorces in United Kingdom law. An overseas divorce would be recognised as valid under the 1971 Act if:

•it was obtained by means of judicial or other proceedings in any country outside the United Kingdom; and

•it was valid in that country; and

•either spouse was habitually resident in, or was a national of, that country.

2.1.3 The effect of the first of these requirements was that:

•there should have been some formal proceedings, either before a court or another formal body recognised by the state for that purpose (e.g. the Union Council, in Pakistan); and

•the judicial or other body should be impartial as to the outcome of the proceedings (i.e. a meeting of family members to dissolve a customary marriage or hear the pronouncement of a talaq did not satisfy this requirement).

2.1.4 The 1971 Act was amended on 1 January 1974 by the Domicile and Matrimonial Proceedings Act 1973 which provided for:

•recognition of other forms of overseas divorce (e.g. “bare” talaq in Kashmir), which would be recognised if both parties were domiciled in a country which permitted such a divorce; and

•non-recognition of a divorce obtained other than by means of a proceeding in a court of law if both parties had, throughout the year immediately before the institution of the proceedings, been habitually resident in the United Kingdom.

2.2 The UK law since 1988

2.2.1 Part II of the Family Law Act 1986, which came into force on 4 April 1988, provides criteria for the recognition in the United Kingdom of foreign divorces. Under s.46(1) the validity of an overseas divorce obtained by means of proceedings shall be recognised if:

a. the divorce is effective under the law of the country in which it was obtained; and

b. at the date of the commencement of the proceedings either party to the marriage was:

i. habitually resident in the country in which the divorce was obtained; or

ii. domiciled in that country; or

iii. a national of that country.

2.2.2 Under s.46(2) the validity of an overseas divorce obtained otherwise than by means of proceedings (eg a bare Talaq divorce where the husband declares 3 times “I divorce thee”) shall be recognised if:

a. the divorce is effective under the law of the country in which it was obtained; and

b. at the date on which it was obtained:

i. each party to the marriage was domiciled in that country; or

ii. either party to the marriage was domiciled in that country and the other party was domiciled in a country under whose law the divorce is recognised as valid; and

c. neither party to the marriage was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date; and

d. there is an official document certifying that the divorce is effective under the law of the country in which it is obtained (or where one of the parties was at the date of the divorce domiciled in another country, there shall be an official document certifying that the divorce is recognised as valid under the law of that country).

NB. A party to a marriage shall be treated as domiciled in a country if domiciled in that country either according to the law of that country in family matters or according to the law of the part of the United Kingdom in which the question of recognition arises.

2.2.3 Under s.49 of the 1986 Act, in relation to countries in which several different systems of law are in force (e.g. the USA), certain modifications are made to the conditions for recognition of foreign divorces under s.46:

In the case of a divorce whose validity depends upon satisfying 2.2.1 b. i. Or ii. Or 2.2.2 b. above each territory or jurisdiction should be treated as if it were a separate country.

In the case of a divorce whose validity depends upon satisfying 2.2.1 b. iii. Above the divorce must be effective throughout the country in which it was obtained.

2.2.4 Section 51 provides for the refusal of recognition where recognition would manifestly be contrary to public policy.

2.2.5 Section 52 applies the same criteria for recognition retrospectively to overseas divorces obtained before the date of commencement of Part II of the Family Law Act 1986 but does not affect the validity of any divorce obtained before its coming into force on 4 April 1988 and recognised as valid “by any competent court in the British Islands” under rules of law formerly applicable.

2.3 The fact that a person who has obtained a divorce overseas is later married in this country should not be taken as proof that the divorce is valid. When foreign divorce documents are produced to the Superintendent Registrar before a marriage licence or certificate is issued, their validity in English law is assumed unless they appear at first sight to be irregular (e.g. clearly invalid in the country of issue or granted only for religious purposes).

2.4 The General Register Office do not feel able to extend their enquiries, since the onus lies on the parties concerned to show that they have the personal capacity to contract the proposed marriage. They are warned that they may have to satisfy another authority of the validity of a previous divorce if at any time it becomes necessary to confirm the validity of the marriage.

2.5 Some guidance on divorce in accordance with other laws and religions is given below. Any difficult foreign divorce cases may be referred to INPD (EOP2) for information or advice.

2.6 Talaq divorce

2.6.1 In traditional Islamic law a bare talaq divorce is the pronouncement by the husband taking the form of a triple declaration: “I divorce thee”. This has the effect of dissolving the marriage instantly. However, the Muslim Family Laws Ordinance 1961 (MFLO) lays down formal requirements for the recognition of divorces in all parts of Bangladesh and Pakistan except Azad Kashmir. Under the MFLO, when a man pronounces talaq in any form, he must give the Chairman of the Union Council of the ward notice in writing of the pronouncement and he must also give a copy of the notice to his wife. After this, a period of 90 days (or the end of her pregnancy if his wife is then pregnant) must elapse before the divorce becomes effective. There is a process for reconciliation between the parties which may be attempted during this period.

2.6.2 The MFLO has not been formally extended to Azad Kashmir, and the only form of divorce that may be recognised in Azad Kashmir is the traditional bare form.

2.6.3 A talaq divorce performed in accordance with the requirements of s.7 of the MFLO is capable of recognition under s.46(1) of the 1986 Act (Quazi -v- Quazi [1979] 3 All ER 897, HL). A bare talaq, which has been held by the Court of Appeal in Chaudhary v Chaudhary [1985] Fam 19 not to constitute judicial or other proceedings, is capable of recognition under s.46(2) of the 1986 Act.

2.6.4 The scope for recognition of the 2 types of divorce is thus as follows:

Recognition of full Talaqs performed overseas

i. A full talaq under the MFLO performed wholly in Pakistan (excluding Azad Kashmir or Bangladesh) will be recognised if either spouse was:

-habitually resident, or domiciled in that country, or

-a national of that country

Recognition of bare talaqs pronounced overseas

ii. A bare talaq pronounced in Azad Kashmir will only be recognised if:

-both spouses were still domiciled in Azad Kashmir at the time of pronouncement (or one was, and the other spouse was domiciled in another foreign country that recognised bare talaq divorce), and

-neither spouse had been habitually resident in the United Kingdom throughout the year immediately preceding the pronouncement of divorce, and there is:

i. an official document certifying that the divorce is effective under the law of the country in which it is obtained, or

ii. (where one of the parties was at the date of the divorce domiciled in another country) an official document certifying that the divorce is recognised as valid under the law of that country.

2.6.5 Where the couple are from Azad Kashmir and the husband has become domiciled in this country while his wife is still domiciled in Azad Kashmir, the only way he can effect a divorce that would be recognised under United Kingdom law is through the courts in this country. It should be noted that, before 1 January 1974, the wife was regarded as being domiciled where her husband was domiciled (see DOMICILE).

2.6.6 For guidance on the validity of talaq divorces obtained in the UK, see paragraphs 1.4-1.6 above.

2.6.7 There are instances purporting to be full Talaq divorces where the proceedings are started in this country with the man pronouncing Talaq 3 times here, but then completed overseas (e.g. in Pakistan) by the man writing to notify the Union Council Chairman and his wife there. It was held by the House of Lords in Re Fatima [1986] 2 All ER 32 that such trans-national divorces were not capable of recognition under the Recognition of Divorces and Legal Separations Act 1971 and they would not be recognised under the Family Law Act 1986. To be capable of recognition under ss.45 and 46 of the 1986 Act an overseas divorce must be instituted and obtained in the same country outside the British Isles. This view was reinforced in the case of Berkovits v Grindberg [1995] 1 FLR 477 which involved a Jewish “Get” divorce where the proceedings took place partly in the UK (where the Get was written) and partly in Israel (where the Get was pronounced).

 

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