This article was authored by Hannah McCrindle.
This article was authored by Fleur Claoue de Gohr.
There is no facility by which to formally register a foreign divorce in England & Wales per se. However, a divorce that took place abroad will be valid in the jurisdiction of England & Wales if, as under the rules of the Family Law Act 1986, the issued foreign order is valid under the law of the country in which it was obtained. Furthermore, at the date on which recognition of the foreign divorce is sought, either of the parties must be habitually resident, domiciled or a national of the country in which the foreign order was obtained.
What is a Foreign Divorce?
A foreign divorce is one that has been obtained by means of judicial or other proceedings, or other than by means of proceedings, in any country outside the jurisdiction of England & Wales which is effective under the laws of that country.
Types of Divorce
The difficulties arise within the meaning of "or other than by means of proceedings". This requires that there are formal proceedings, either the parties have been before a court or the proceedings have taken place under some form of supervision or control from a judicially recognised body whose purpose it is to oversee divorce proceedings. It is important that the judicially recognised body is impartial in their involvement and the eventual outcome of the proceedings for it to be recognised in England and Wales.
It should be noted that the terminology "otherwise than by means of proceedings" does cover a wide variety of recognised divorces abroad. For example, the West African customary marriage dissolution through the meeting of family members, the hearing of a pronouncement of Talaq; or a Jewish get.
The Talaq Divorce and its Recognition in England & Wales
A Talaq is a traditional Islamic bare divorce. It is deemed to have taken place, and consequently dissolves the marriage instantly, when the husband says "I divorce thee" three times in a row. It should be noted that it is no longer sufficient under Islamic law to simply say "I divorce thee" three times to obtain a valid Talaq. Under the Muslim Family Law Ordinance 1961, the formal requirements for the recognition of a full Talaq in all parts of Bangladesh and Pakistan (except Azad Kasmir) are:
- The husband must give notice in writing of the pronouncement of a Talaq divorce to the Chairman of the Union Council of the Ward,
- The husband must also give a copy of this notice to his wife
Following the receipt of this notice, the Talaq will be granted at the end of a 90-day period (or at the end of the wife's pregnancy if she is pregnant at the time of the notice). Provisions are made under the Muslim Family Law Ordinance for the parties to attempt a reconciliation during this period.
The Muslim Family Law Ordinance of 1961 is integral to a Talaq being recognised in the jurisdiction of England and Wales, only a Talaq that has been validly issued under those rules will be recognised as being valid under English law.
If Talaq by way of a husband saying "I divorce thee" three times to his wife is done within the jurisdiction of England & Wales, that will not be sufficient to dissolve the marriage and the Talaq will not be recognised as a valid divorce.
Examples of Divorce Recognition cases
Mensah v Mensah  EWHC 484 (Fam)
The case concerned an appeal made by the wife on whether the English courts had the jurisdiction to recognise and divorce granted by the District Court of Nanterre, France in 2015. It was the husband's position that the English divorce petition was never properly served on him. The husband made a set aside application of the English Decree Nisi and Decree Absolute on the basis that they were null in the first place.
The wife's principal ground of appeal was that she was unaware of the order made by the district court in Nanterre. The wife further maintained that she was not given notice of her husband's summons that resulted in the divorce being pronounced in that court. The wife's case rested on the provisions of Article 22(b) of the Brussels II regulations. The husband's case rested on the idea that the grounds of non-recognition set out in Article 22 were established.
Mrs Justice Theis dismissed the appeal made by the wife and addressed all grounds of Article 22 in turn. Theis J found:
In terms of public policy – that there was no argument as to public policy, since the wife wanted to be divorced.
In terms of default appearance – there was an argument that the wife was a "respondent" – keeping in line with the terminology of Article 22(b) – since she had initiated proceedings in France and so could be considered a respondent for the purposes of the husband's summons that resulted in the 2015 divorce being granted in France. However, evidence presented in the case proved to show that the wife did have notice of the husband's summons with sufficient notice in order to be able to arrange her defence. Furthermore, the wife had written to the court in Nanterre on multiple occasions thus demonstrating her knowledge of the proceedings.
In terms of irreconcilable judgement – Theis J found that there were no grounds to say that the French divorce couldn't be recognised in England on the grounds that it was irreconcilable with the English divorce. When the decree in England was eventually made, the marriage had already been dissolved in France. There were also found to be no policy reasons for not allowing the wife to rely on the later English divorce decree and it creating an "irreconcilable judgement" since evidence showed that the wife had not provided the English courts with all the requisite information.
Theis concluded her judgement with two final points. First, that the DFJ would be informed that there had been a 6-month delay between the registration order being made and the sealed copy becoming available. Secondly, despite there being scope for critique of the wife regarding her reluctance to provide the English courts with all of the relevant information, there was enough information and evidence regarding the French proceedings to have warranted a court to make investigations and consider whether the information that was provided warranted a hearing to be listed under FPR 7.27. it was noted that in these proceedings that did not happen for reasons that were unclear.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. For any further queries or follow up please contact Expatriate Law at firstname.lastname@example.org.