..::Foreign Divorces in Pakistan recognition in UK

2. Divorce overseas

2.1 The 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 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.

Trans-national (Talaq) divorce

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).

3. Divorces in accordance with different laws

3.1 Brazilian divorce

3.1.1 Before 1977, Brazilians who married in Brazil could not obtain a divorce. The

nearest thing was a provision for legal separation known as a “desquite”, which

cannot be accepted as evidence of the termination of a marriage. It was common

practice for a couple, one or both of whom had obtained a desquite, to go to Bolivia

to marry because Bolivia was prepared to accept a desquite as a divorce, but the

marriage would not be valid in Brazil.

3.1.2 Since 1977, it has been possible to convert a desquite into a divorce, which will

only be given after 3 years’ legal separation.

3.1.3 Any case involving a desquite or a desquite converted into a divorce should be

referred to INPD(L).

3.2 Cypriot divorce

3.2.1 Under the law of Cyprus, a marriage between 2 members of the Greek

Orthodox Church, which is solemnised in accordance with the rites of that church,

can only be dissolved by a competent tribunal of the Greek Orthodox Church, no

matter where it is. Even so, such a divorce can only be recognised if the conditions at

2.2.1 a. and b. are met.

3.3 Ghanaian divorce

3.3.1 The Customary Marriage and Divorce (Registration) Law 1985 provided for the

proper registration of divorces in Ghana, and was retroactive. All Ghanaians, whether

living in or outside of Ghana, can now obtain certificates of divorce and they should

be requested from applicants whenever marital status is important.

3.3.2 However, under the Customary Marriage and Divorce

(Registration)(Amendment) Law 1991, registration is no longer mandatory. Where

the relevant certificates are not available, we should expect to receive a statutory

declaration by the heads of the families concerned (or two people representing the

legal interests of the parties) confirming the date, place and type (e.g. tribal custom)

of the marriage and/or divorce.

3.4 Philippines divorce

3.4.1 Divorce is not generally permitted in Philippines law. With the one exception in

3.4.2 below, the only circumstances where a divorce, where one of the parties is a

Filipino citizen, will be recognised is where:

• the other spouse is a foreigner; and

• the couple are validly married; and

• a valid divorce was obtained abroad by the foreign spouse

3.4.2 Separate arrangements are made for Muslims living the Philippines. The Code

of Muslim Personal Laws 1977 provides that where both parties to a marriage are

Muslims, a divorce can be obtained at the Sheria court.

3.4.3 In all other cases, a marriage can otherwise only be terminated if the marriage

is declared void or is annulled (in either case a court order must be obtained), or if

one of the parties dies.

3.5 Turkish divorce

3.5.1 Divorces in Turkey are governed by the Turkish Civil Code 1926. Divorces can

only be obtained from a court, and no other form of divorce can be recognised as

valid in Turkish law. In pronouncing the divorce, a judge may decree that the

respondent cannot remarry for a period of 1-2 years. The divorcee may be prohibited

from remarrying for up to 300 days (the same may also apply to a widow or a woman

whose marriage has been annulled).

3.6 USA Divorce

3.6.1 Divorce is governed by State rather than by Federal law, and the provisions of

s.49 of the Family Law Act 1986 therefore apply. See paragraph 2.2.3 above.

3.7 Zimbabwe divorce

3.7.1 The Southern Rhodesia (Marriages, Matrimonial Causes and Adoptions) Order

1972, which came into force on 12 December 1972, and was retroactive to the illegal

declaration of independence (idi), provided that marriages, divorces and annulments

performed or granted in Southern Rhodesia since idi should not be regarded as

invalid merely because the officials or authorities concerned were appointed by, or

were acting for, the illegal regime.

3.7.2 The Southern Rhodesia (Matrimonial Jurisdiction) Order 1970, which came into

force on 16 November 1970, gave limited relief to people who had not been able to

obtain a divorce in Southern Rhodesia that was valid in United Kingdom law. Its

general effect was to give the same jurisdiction to the courts of each part of the

United Kingdom to entertain proceedings for divorce or nullity of marriage of a person

domiciled or resident in Southern Rhodesia as if that person had been domiciled or

resident in that part of this country, whether England and Wales, or Scotland, or

Northern Ireland.

3.7.3 The Order required that a person should have completed 6 months’ residence

in the part of the United Kingdom concerned before proceedings could be instituted

here. If the person was resident in Southern Rhodesia on or after 11 November

1965, and then lived in some other country before becoming resident in the United

Kingdom, the residence in the other country would be disregarded in calculating any

period of residence required under United Kingdom law. This took into account the

fact that some of the people who left Southern Rhodesia after idi might well have

spent some time in other countries before deciding to come here. Both these Orders

were repealed by Schedule 3 to the Zimbabwe Act 1979.

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