Part V Family Law, 22 Matrimonial and Related Causes
Uglješa Grušić, Christian Heinze, Louise Merrett, Alex Mills, Carmen Otero García-Castrillón, Zheng Sophia Tang, Katarina Trimmings, Lara WalkerEdited By: Paul Torremans, James J. Fawcett
- Choice of law clauses — Marriage — Matrimonial causes
(p. 951) 22 Matrimonial and Related Causes1
Matrimonial causes are now generally taken to include petitions for divorce, nullity of marriage, judicial separation, and presumption of death and dissolution of marriage, as well as similar foreign proceedings which may fall for recognition in England.
The rules relating to the jurisdiction of the courts and to the recognition of foreign divorces, annulments and judicial separations are, in essence, the same for all three matrimonial causes, and will therefore be examined together, identifying where appropriate any rules which do not apply to all three. It will be seen that the one major area of difference remaining concerns the determination of the law to be applied by the English courts.2 We shall then go on to examine, separately, proceedings for presumption of death and dissolution of marriage. Thereafter, consideration will be given separately to conflict rules concerning the dissolution, nullity and separation of civil partnerships and same sex marriage.
Before these various matrimonial and related causes are considered, it is necessary to discuss a further preliminary issue, namely whether an English court will assume jurisdiction to grant matrimonial relief in the case of a polygamous marriage.
(p. 952) 2. Polygamous Marriages and Matrimonial Relief3
(a) At common law
Until 1972, the rule of English law was that the parties to a polygamous marriage were “not entitled to the remedies, the adjudication, or the relief of the matrimonial law of England”.4 It meant that, in the case of a polygamous marriage, the courts would decline to grant a divorce,5 a decree of nullity even where the petitioner claimed lack of capacity to enter a polygamous marriage,6 or a decree of judicial separation.7 It came to be realised, however, that fundamental reform was called for in view of the number of immigrants from jurisdictions where they had contracted valid marriages in polygamous form. A substantial number of people, permanently resident though not domiciled in England, were denied all matrimonial relief.
(b) Matrimonial Causes Act 1973, section 47
All this has now changed. Section 47(1) of the Matrimonial Causes Act 19738 provides that: “A court in England and Wales shall not be precluded from granting matrimonial relief or making a declaration concerning the validity of a marriage by reason only that either party to the marriage is, or has during the subsistence of the marriage been, married to more than one person.”
This section makes available to the parties to an actually polygamous marriage9 a wide range of matrimonial relief,10 namely decrees of divorce, nullity, judicial separation, presumption of death and dissolution of marriage, orders for financial provision in the cases of neglect to maintain, variation of maintenance agreements, orders for financial relief or relating to children which are ancillary to any of the preceding decrees or orders,11 orders made under Part I of the Domestic Proceedings and Magistrates’ Courts Act 1978,12 orders for financial relief after a foreign divorce, annulment or legal separation,13 and any declaration under Part III of the Family Law Act 1986 involving a determination as to the validity of a marriage.14 Indeed it has been said that the effect of section 47 of the 1973 Act is to abolish entirely the old rule, so that all forms of relief which can be classed as matrimonial are now available in the case of polygamous marriages.15
References(p. 953) (c) Remaining problems
Whilst polygamous marriages will, for the purposes of such relief, normally be treated just as if they were monogamous marriages, they do pose certain peculiar problems in the, albeit rare, cases of actually polygamous marriages. Indeed, in such cases the 1973 Act makes specific provision for the making of rules of court to require notice of the proceedings to be served on any spouse other than one who is party to the proceedings and to confer on such a spouse a right to be heard.16
Where a party to an actually polygamous marriage brings proceedings for divorce alleging irretrievable breakdown of the marriage,17 difficulties may arise over adultery, unreasonable behaviour or desertion as proof of breakdown.18 If a wife alleges that her husband has committed adultery with another wife, such a claim will usually fail because “it is an essential element of adultery that intercourse has taken place outside the marriage relationship ie between persons not married to each other. This being so, intercourse with a wife could not be adultery”.19 In terms of policy, this conclusion seems right if both marriages were entered into in polygamous form. It has been said20 that in such a case there has been no breach of the obligation of fidelity imposed by the law governing the marriage. Difficulties arise, however, in the case of a valid monogamous marriage, followed by a valid polygamous one,21 as in the decision of the Privy Council in Drammeh v Drammeh:22
H, domiciled in The Gambia, married W1 in England in monogamous form. Both professed the Christian faith. H then returned to The Gambia, reverted to his Moslem faith and married W2 in polygamous form. W1 petitioned for divorce, before the courts of The Gambia, alleging adultery by H and W2.
The Privy Council upheld the decision that W1 was entitled to a divorce, holding that even if the marriage to W2 was a valid polygamous marriage under the law of The Gambia, this should not affect the rights of W1 stemming from her valid English monogamous marriage. The nature of her marriage was not changed by H’s unilateral change of faith. So far as W1’s marriage was concerned, H had committed adultery with W2.23 Had W1 chosen, as well she might, to have petitioned for divorce in England, it seems likely that an English court would have reached the same conclusion as the Privy Council.24 When the Law Commission considered the effect of a later polygamous marriage on an earlier marriage, whether in monogamous or polygamous form, it concluded that legislative intervention was neither necessary nor desirable.25
If a wife’s divorce petition is based on the husband’s unreasonable behaviour,26 the court will have to examine all the circumstances of the marriage.27 It has been held that the taking by the husband of a second wife is unreasonable behaviour towards the first.28 Similarly, if a References(p. 954) husband’s petition is based on desertion by the first wife,29 the fact that he has validly married a second wife has been held to give the first wife reasonable grounds for leaving him.30
3. Divorce, Nullity and Judicial Separation
(i) Bases of jurisdiction
The Domicile and Matrimonial Proceedings Act 1973, Part II, lays down, in section 5, rules of jurisdiction for proceedings for divorce, judicial separation and nullity of marriage.31 The rules contained in Part II of the 1973 Act were significantly changed, with effect from 1 March 2001, to take account of European harmonisation in the form of Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (known colloquially as “Brussels II”).32 Brussels II, in turn, was repealed, with effect from 1 March 2005, by Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (“Brussels II bis”).33 The rules of jurisdiction in matrimonial matters contained in Brussels II bis were taken substantially from Brussels II, which, in turn, were taken34 from the Brussels II Convention of 28 May 1998 (never implemented) on the same subject.35
(a) Divorce or judicial separation
Section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 provides that the High Court or a divorce county court shall have jurisdiction to entertain proceedings if, and only if: (a) the court has jurisdiction under Brussels II bis; or (b) no court of a Contracting State36 has jurisdiction under Brussels II bis, and either of the parties to the marriage is domiciled in England on the date when the proceedings are begun. In other words, pre-eminent jurisdiction lies with the courts of a country which has jurisdiction in terms of Brussels II bis.
References(p. 955) (i) Jurisdiction under Domicile and Matrimonial Proceedings Act 1973, section 5(2)(a)
Article 337 of Brussels II bis states the principles of general jurisdiction. Jurisdiction shall lie with the courts of the Member State:
(a) in whose territory:
— the spouses are habitually resident,38 or
— the respondent is habitually resident,41 or
— in the event of a joint application, either of the spouses is habitually resident, or
— the applicant is habitually resident if s/he resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his/her domicile there;44
The grounds of jurisdiction in Article 3 are set out as alternatives, and not in any order of precedence.48 It is apparent that there is some overlap in the provisions of Article 3; there is no need for a basis of jurisdiction on the ground of the spouses’ common habitual residence (indent 1), if jurisdiction can be founded upon the respondent’s habitual residence alone (indent 3). This overlap is a result of political compromise: “The grounds adopted are based on the principle of genuine connection between the person and a Member State. The decision to include particular grounds reflects their existence in various national legal systems References(p. 956) and their acceptance by the other Member States or the effort to find points of agreement acceptable to all”.49
It can be seen that the principal connecting factor is habitual residence. This factor is nowhere defined in the instrument,51 and it is not easy to define.52 It has been held that the term “habitual residence” has an autonomous meaning for the purposes of the Brussels II bis Regulation.53 The autonomous EU interpretation of habitual residence (as opposed to the domestic interpretation) does not accord decisive importance to the length of time a person spends in or out of a country; instead, the focus is on the centre of interests, whereas account must be taken of all relevant factors, including both intention and relevant objective factors. It is not required that the centre of interests be permanent; it need only be habitual.54 Chapter 9, above, contains a full analysis of the concept of habitual residence, and so reference should be made to that treatment of the subject. In the context of jurisdiction in divorce, judicial separation and nullity of marriage, it suffices to make the following remarks.
With regard to the 1973 Act, the House of Lords held in Mark v Mark55 that there was no reason for the word “lawfully” to be implied into section 5(2) of the Act: residence for the purpose of section 5(2) need not be lawful residence,56 for the purpose of section 5(2) is to provide an answer to the question whether the parties and their marriage have a sufficiently close connection to the United Kingdom to make it desirable that English courts should have jurisdiction to dissolve the marriage.
A difficulty of interpretation has arisen in relation to the text of indents 5 and 6 of Art 1(3)(a) of Brussels II bis. In both indents the connecting factor of “habitual residence” is coupled with the connecting factor of “residence”,57 and it is disputed whether, in this context, References(p. 957) the two terms are to be interpreted as two distinct concepts, or whether “residence” is to be interpreted as meaning “habitual residence”. In Marinos v Marinos,58 Munby J (as he then was) took the view that there were two elements to the sixth indent (and thus also to the fifth indent). What appears, therefore, to be required for the purpose of these two indents is: “(i) habitual residence on a particular day and (ii) residence, though not necessarily habitual residence, during the relevant immediately preceding period”.59 In the words of Munby J, “ ‘Resided’ means just that. It refers to residence; it does not connote habitual residence”.60 In Munro v Munro,61 Bennett J took the opposite view and considered that the fifth and sixth indents were to be read as imposing a single requirement of habitual residence of at least one year or six months, as the case may be, at the date of the presentation of the petition.62 In both judgments, the views expressed were obiter dicta.63 In V v V (Divorce: Jurisdiction),64 Jackson J preferred the approach taken by Munby J in Marinos to the analysis of Bennett J in Munro.65 The learned judge preferred the interpretation in Marinos because it “reflected a plain reading” of Art 3(1)(a).66 Jackson J submitted that “habitual residence is a term of art, while residence is not. Residence [ . . . ] is simply where a person lives”.67 He referred to the fact that Brussels II bis differentiated between the two concepts and, as Munby J said in Marinos, “if it had been intended to refer just to the one concept the regulation could, for example, very easily have used [other] words”.68 In 2014, the ambiguity in the wording of indent 5 of Art 3(1)(a) was addressed by the Court of Appeal. In Tan v Choy69 , Aikens LJ suggested that there were (at least) three possible constructions of the provision,70 proposing thus an interpretation additional to the two approaches that had been put forward by the first instance authorities. First, that the person seeking to establish jurisdiction shows that he was “habitually resident” in the territory concerned at the date the proceedings began and that he had “resided” there for at least a year before the relevant proceedings started. Secondly, that he was “habitually resident” there for one year prior to the start of the proceedings. Thirdly, that “habitual residence” is proved by establishing that he had resided in the territory for at least a year immediately before the proceedings started. His Lordship, however, concluded that in the present case, it was not necessary to resolve this “doctrinal dispute” as the finding that the husband was ‘habitually resident’ in England for the relevant period, satisfied any of the three possible constructions of the provision.71
Of the contradictory interpretations, the reasoning of Munby J in Marinos appears to be the most convincing. Such a literal interpretation of Art 3(1)(a), indent 6 as advocated in Marinos, can be justified by reference to the precise language of the text. It would be illogical References(p. 958) and inconsistent to take a different approach to the interpretation of “resided” where it appears in the similarly worded Art 3(1)(a), indent 5. Munby J’s interpretation of “resided” would be more strained, however, if it were applied to Art 3(1)(a), indent 2, for that provision would appear to require, extending his Lordship’s reasoning: (i) common habitual residence on the last day on which the parties cohabited and (ii) residence, though not necessarily habitual residence, on a subsequent day, namely, that on which proceedings are commenced. A requirement only of “residence” on the date on which proceedings are commenced would seem to be at odds with the importance otherwise attributed by Art 3(1)(a) to “habitual residence” as at the date of commencement of proceedings. However, as a matter of fact, it is unlikely, for the purposes of indent 2, that the “residence” of the “remaining” spouse, having regard to its continuing nature, would be other than “habitual”.
Stipulation of a one-year period of residence for the purposes of habitual residence in Article 3, indent 5 of Brussels II bis should not be taken to be a definition of habitual residence for the purposes of the other indents in that provision. Indents 5 and 6 allow forum actoris72 in exceptional cases, on the basis of habitual residence coupled with another connection.73
It has been explained in Chapter 974 that a degree of continuity of residence is required: “a residence must be more than transient or casual; once established, however, it is not necessarily broken by a temporary absence”.75 Indeed, in the context of divorce jurisdiction, a respondent has been held to be habitually resident in England even though she spent one-third of the relevant year either on holiday in Spain or visiting her children in the USA and Canada.76 The Court of Appeal in Ikimi v Ikimi77 had to consider whether a Nigerian wife who filed a petition for dissolution of marriage in England on the basis of habitual residence had two such residences. The family had two matrimonial homes, of equal status, in Nigeria and in England, and the wife had spent 161 days of the year in England. The submission that it was not possible to be habitually resident in two places simultaneously was firmly rejected by the Court of Appeal,78 but the Court took the view that the bodily presence required to form a basis for habitual residence had to be more than merely token in duration, probably amounting to residence for “an appreciable part of the relevant year”.79 Subsequently, in Armstrong v Armstrong,80 Dame Elizabeth Butler-Sloss concluded that the correct approach References(p. 959) to the degree of continuity required to establish habitual residence in a country “cannot just be a counting of the days spent in the country. There has to be an element of quality of residence.”81
In Marinos v Marinos82 it fell to be decided whether, for the purposes of Brussels II bis, a person can be habitually resident in two different countries at the same time. Munby J considered that while it was clear that, for the purposes of English domestic law, one could be habitually resident contemporaneously in two different countries,83 “the same is not necessarily true of the law laid down by the ECJ nor, specifically, for the purposes of the Regulation”.84 His Lordship suggested that the point of interpretation of Article 3 of the relevant Regulation (Brussels II) in Armstrong was inadequately argued and addressed, and that the decision of Dame Elizabeth Butler-Sloss P, therefore, rests on a “frail foundation”.85 Munby J concluded in Marinos86 that, “the language of Article 3(1) (a) of the Regulation [Brussels II bis87] is clear, as is the ECJ case-law. For the purposes of the Regulation, one cannot be habitually resident in more than one country at the same time.”88 Of the two conflicting interpretations in Armstrong and Marinos, respectively, the latter commends itself as being technically more accurate,89 whereas the former has the advantage of flexibility. Even adopting the strict interpretation of Munby J, however, to the effect that, for the purposes of the Brussels II bis Regulation, a party has only one habitual residence at any given time, there is room for disagreement90 between the courts of different Member States on the question, where a party is habitually resident, particularly in cases such as these, where residence is divided. By reason of Article 19 (lis pendens),91 however, such disagreement will emerge only consecutively, and not contemporaneously.
The concept of alternating, or consecutive, habitual residences has been accepted in relation to a family that spends six continuous months in one home, followed by six continuous months in another.92
References(p. 960) The time at which the personal law connecting factor (habitual residence or domicile, as the case may be) is to be determined is, as at common law and under the 1973 Act prior to 1 March 2001,93 the time when proceedings are commenced, and not at the later time when the case is actually tried.94 If the rule were otherwise, a respondent habitually resident in England could frustrate a petition brought by the other spouse, domiciled and resident abroad, by changing his residence between the presentation of the petition and the hearing of the case. The rule is “once competent, always competent”95 and this will be so even if the party habitually resident in England at the time of the English proceedings has since changed his residence and disassociated himself from the determination of his status by an English court.
In terms of Article 4 of Brussels II bis, a court which has jurisdiction on the basis of Article 3, and in which proceedings are pending, also has jurisdiction to examine a counterclaim, insofar as the counterclaim falls within the scope of the Regulation.96
Conversion of legal separation into divorce
A Member State court which has given a judgment97 on a legal separation has jurisdiction, by virtue of Article 5 of the Regulation, to convert that judgment into a divorce, if the law of that Member State so provides.98 In some countries, legal separation is a necessary step prior to divorce, and so the conversion of legal separations into divorces is not infrequent in certain States.
Exclusive nature of jurisdiction under Articles 3, 4 and 5 and residual jurisdiction
By virtue of Article 6 of Brussels II bis, a spouse who (a) is habitually resident in a Member State; or (b) is a national of a Member State,99 or, in the case of the United Kingdom, has his/her “domicile” in that state, may be sued in another Member State only in accordance with Article 3, 4 or 5. In other words, national rules of residual jurisdiction, set out, for England, in section 5(2)(b) of the Domicile and Matrimonial Proceedings Act 1973, considered below, cannot be relied upon in respect of such a person.
Article 7(1) of Brussels II bis provides that, where no court of a Member State has jurisdiction pursuant to Article 3, 4 or 5 of the Regulation, jurisdiction shall be determined in each Member State by the laws of that state.100 The European Court of Justice (ECJ) has stated that the application of Article 7(1) does not depend on the “position”101 of the respondent, References(p. 961) but solely on the question whether the court of a Member State has jurisdiction pursuant to Articles 3 to 5 of the Regulation.102 By way of rationalisation of this statement, it should be noted that the rules for allocation of jurisdiction under Articles 3 to 5 envisage that jurisdiction can be established without reference to the “position” of the respondent as at the date of commencement of proceedings. This is true, however, only in respect of Article 3(1)(a), indents 5 and 6, based as they are upon principles of forum actoris,103 and potentially also in respect of indent 2.
By Article 7(2), as against a respondent who is not habitually resident and is not either a national of a Member State or, in the case of the United Kingdom and Ireland, does not have his domicile within the territory of one of the latter Member States, any national of a Member State who is habitually resident within the territory of another Member State may, like the nationals of that state, avail himself of the rules of jurisdiction applicable in that state.104 For Article 7(2) to apply, the applicant must be a national of a Member State habitually resident in another Member State. Moreover, the respondent must satisfy two conditions: he must be habitually resident in a non-Member State country, and he must not be a citizen of a Member State (or, in the case of the United Kingdom and Ireland, must not be domiciled there).105
A question existed as to the extent to which the national rules of residual jurisdiction of one Member State could be used to trump the (putative) exercise by another Member State of jurisdiction under Article 3 of the Regulation. This very issue arose in Sweden, in the case of Sundelind Lopez v Lopez Lizazo.106
The case concerned the commencement of divorce proceedings in the District Court of Stockholm by the female petitioner, a Swedish national, against her respondent husband, a Cuban national. The couple had lived together in France. At the date of commencement of proceedings, the petitioner continued to reside in France, whereas her husband, by then, was resident in Cuba.
The Swedish court dismissed the petition on the ground that, under Article 3(1)(a)107 of Brussels II bis, only the French courts had jurisdiction and that, accordingly, Article 7 of the Regulation precluded Swedish rules on jurisdiction from applying. The Swedish Court of Appeal dismissed the appeal brought by the petitioner against that judgment. In a further appeal to the Swedish Supreme Court, the petitioner submitted that Article 6 of Brussels II bis implies that the courts of Member States do not have exclusive jurisdiction where the respondent neither has his habitual residence in, nor is a national of, a Member State. In February 2007, the Swedish Supreme Court referred the following question108 to the ECJ for a preliminary ruling on the matter, namely:
The respondent in a case concerning divorce is neither resident in a Member State nor a citizen of a Member State. May the case be heard by a court in a Member State which does not have jurisdiction under Article 3 [of Brussels II bis], even though a court in another Member State may have jurisdiction by application of one of the rules on jurisdiction set out in Article 3?
Articles 6 and 7 of the Regulation are to be interpreted as meaning that where, in divorce proceedings, a respondent is not habitually resident in a Member State and is not a national of a Member State, the courts of a Member State cannot base their jurisdiction to hear the petition on their national law, if the courts of another Member State have jurisdiction under Article 3 of the Regulation.
The Court held that, according to Article 7(1), it is only where no court of a Member State has jurisdiction pursuant to Articles 3 to 5 of the Regulation that jurisdiction is to be governed, in each Member State, by the laws of that state. Moreover, according to Article 17 of the Regulation, where a court of one Member State is seised of a case over which it has no jurisdiction under the Regulation, and a court of another Member State has jurisdiction pursuant to the Regulation, the former is to declare of its own motion that it has no jurisdiction. Finally, the ECJ made clear that Article 6 does not lay down a general rule that the jurisdiction of the courts of a Member State to hear questions relating to a divorce in respect of a respondent who does not have his habitual residence in a Member State and is not a national of a Member State is to be determined, in all cases, under national law.110
The consequence, in Sundelind Lopez v Lopez Lizazo, was that since the French courts had jurisdiction to hear the divorce petition pursuant to Article 3(1)(a), the Swedish courts could not base their jurisdiction to hear that petition upon rules of their national law, pursuant to Article 7(1), but were required, in accordance with Article 17, to declare of their own motion that they had no jurisdiction, in favour of the French courts.111
(ii) Jurisdiction under Domicile and Matrimonial Proceedings Act 1973, section 5(2)(b)
For England,112 the national rules of residual jurisdiction are to be found in section 5(2)(b) of the 1973 Act, ie: “the High Court or a divorce county court shall have jurisdiction to entertain proceedings if, and only if no court of a Contracting State113 has jurisdiction under Brussels II bis, and either of the parties to the marriage is domiciled in England on the date when the proceedings are begun”.114
(iii) Reform of rules of matrimonial jurisdiction in Brussels II bis115
In July 2006, the European Commission published a Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters (known colloquially as “Rome III”).116 The Proposal had a dual objective: to amend Brussels II bis as regards jurisdiction in matrimonial matters, and to introduce harmonized choice of law rules in matrimonial matters. In relation to jurisdiction, the following four objectives were to be attained: (i) to strengthen legal certainty and References(p. 963) predictability; (ii) to increase flexibility by introducing limited party autonomy; (iii) to ensure access to court; and (iv) to prevent a “rush to court” by one spouse.117 In detail, it was proposed to insert a choice of court clause into Brussels II bis, to permit spouses in proceedings for divorce or legal separation (but not marriage annulment) to choose the jurisdiction of a “substantially connected”118 Member State court.119 This clearly could be advantageous to “international” couples. Additionally, it was proposed to introduce a new Article 7, providing a uniform and exhaustive rule on residual jurisdiction to replace national rules of residual jurisdiction. The concern was to ensure access to a Member State court for spouses who live in a non-Member State country but who retain strong links with a Member State of which they are nationals or in which they have resided for a certain period. On a point of the EU competence, however, it is highly questionable what interest the EU has in residual cases such as these, which, by definition, fall outside the jurisdictional boundaries of Article 3 of Brussels II bis.120 The United Kingdom government decided not to opt into a resulting EU instrument.121
The provisions on applicable law contained in the Proposal, however, proved problematic, and no unanimity could be reached within the Council with regard to these rules.122 The Commission therefore withdrew the Proposal.123
As a part of the ongoing review of the Brussels II bis Regulation,124 in April 2014, the Commission adopted a Report on the on the application of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.125 The Report identified three underlying shortcomings of the jurisdictional rules of the Regulation in relation to matrimonial matters. First, the alternative (as opposed to hierarchical) grounds of jurisdiction encourage the “rush to court” behavior, which goes against the culture of reconciliation and mediation.126 Second, the Regulation lacks provision for at least a limited party autonomy in matrimonial matters.127 By not allowing spouses to agree on the competent court, Brussels II bis fails to follow the trend in recent EU regulations in civil matters to permit at least a certain level of party autonomy, and hinders the objectives of legal certainty and predictability. Finally, Article 6 which reiterates the exclusive nature of the jurisdiction determined under Articles 3, 4 and 5 of Brussels II bis can “create confusion” and is “superfluous” as Articles 3, 4 and 5 state when a court has exclusive jurisdiction.128
References(p. 964) On 30 June 2016, the Commission published a Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast).129 Very surprisingly, however, as regards matrimonial matters, the Proposal departs entirely from the 2014 Report. It claims that due to “limited evidence of existing problems” it was not possible to identify the scale of the issues or to establish “the need to intervene”.130
This failure to act is highly regrettable. Indeed, it means that the Brussels II bis recast will become a missed opportunity to rectify at least some of the issues that were justifiably highlighted in the 2014 Report, in particular the “race to court” problem,131 and the lack of party autonomy in relation to jurisdiction in matrimonial matters. The “race to court” problem could have been resolved either through establishing a hierarchy of jurisdiction, or through a transfer provision which would have allowed a Member State to transfer proceedings to the court of a Member State with the closer connection.132 With regard to party autonomy, as a minimum, spouses should have been allowed to enter into a choice of court agreement opting for either the courts of the Member State of their habitual residence, at the time the agreement is concluded; the courts of the Member State of their last habitual residence, provided that one of them still resides there at the time of the agreement; or the courts of the Member State of the nationality of either spouse at the time of the agreement.
(b) Nullity of marriage
Section 5(3) of the 1973 Act provides that the High Court or a divorce county court shall have jurisdiction to entertain proceedings if, and only if: (a) the court has jurisdiction under Brussels II bis,133 or (b) no court of a Contracting State134 has jurisdiction under Brussels II bis, and either of the parties to the marriage (i) is domiciled in England on the date when the proceedings are begun,135 or (ii) died before that date and either was domiciled at death in England or had been habitually resident there for one year immediately prior to the date of death.
(i) Jurisdiction under Domicile and Matrimonial Proceedings Act 1973, section 5(3)(a)
Section 5(3)(a) refers to the rules of jurisdiction contained in Brussels II bis which, in relation to petitions for nullity of marriage, are the same as those discussed above in relation to divorce and judicial separation.136
References(p. 965) (ii) Jurisdiction under Domicile and Matrimonial Proceedings Act 1973, section 5(3)(b)
As with proceedings for divorce and judicial separation, Article 7 of Brussels II bis provides that where no court of a Member State has jurisdiction in annulment proceedings pursuant to Article 3, 4 or 5 of Brussels II bis, jurisdiction shall be determined in each Member State by the laws of that state. For England, the residual rules of jurisdiction for proceedings for nullity of marriage are to be found in section 5(3)(b): either of the parties to the marriage (i) is domiciled in England on the date when the proceedings are begun, or (ii) died before that date and either was domiciled at death in England or had been habitually resident there for one year immediately prior to the date of death.
The basis of jurisdiction in section 5(3)(b)(ii) is peculiar to nullity petitions, and is available only where either party to the marriage has died before the date when the proceedings for nullity were begun. The reason for this special jurisdictional rule is that, whilst divorce and judicial separation petitions can be brought only if both spouses are alive, the validity of a marriage may need to be tested in a nullity petition notwithstanding the death of one spouse, or even after the death of both, as where succession issues are involved.
(c) Jurisdiction to entertain other matrimonial proceedings in respect of the same marriage
By virtue of section 5(5) of the Domicile and Matrimonial Proceedings Act 1973, the High Court or a divorce county court shall, at any time when proceedings are pending in respect of which it has jurisdiction by virtue of section 5(2) or (3), discussed above, also have jurisdiction to entertain other proceedings, in respect of the same marriage, for divorce, judicial separation or nullity of marriage, notwithstanding that jurisdiction would not be exercisable under section 5(2) or (3). The purpose of this somewhat cryptic provision seems to be to deal with two jurisdictional problems. For example, let us assume that a husband, habitually resident in France at the date the proceedings are begun, petitions for nullity in England on the basis of his wife’s habitual residence in England, but, before the petition is heard, she abandons her English residence. The wife, domiciled and resident abroad, wishes to cross-petition for divorce in England. At that time, there is no apparent jurisdictional basis for her petition; but section 5(5) confers jurisdiction because proceedings for nullity are pending in respect of which the court does have jurisdiction. Secondly, the English court appears also to have jurisdiction where the petitioner changes his mind, as in the case where a spouse petitions for judicial separation, jurisdiction being based on the respondent’s habitual residence, and then, before the petition is heard but after the respondent has lost her English habitual residence, the petitioner amends his petition to one for divorce. Finally, there is one further complication in that section 5(5) applies to cases where jurisdiction is conferred by reason of that sub-section itself. For example, proceedings are pending for divorce, jurisdiction being based on habitual residence; then a cross-petition is brought for divorce even though the original jurisdictional grounds no longer exist, jurisdiction being conferred by section 5(5); the original proceedings are abandoned; the cross-petitioner then wishes to amend the petition to one for nullity. The court has jurisdiction, again under section 5(5), to hear the final nullity petition so long as the cross-petition is still pending.
(ii) Impact of the statutory bases
If the statutory bases of jurisdiction are satisfied, the court does not have a general discretion to refuse to hear the petition. We shall see137 that there is a discretion to stay the proceedings in cases where to proceed would lead to a clash with foreign proceedings in a non-EU Member State or in Denmark, but there is no other discretion. For instance, leave is not required to serve a petition on a respondent overseas.138 The position has been summed up References(p. 966) by Bush J in a case where the respondent wife was resident in Ireland and could not afford to contest the English divorce proceedings: “If a court has jurisdiction . . . there is no way in which the court could decline jurisdiction on the ground of hardship, apparent unfairness or any other ground.”139
(iii) Procedural issues
(a) Service of the petition140
A copy of every petition for divorce, nullity or judicial separation must be served on the respondent and every co-respondent,141 and there is no need to obtain the leave of the court for service out of the jurisdiction.142 An order for service by an alternative method may be made in appropriate circumstances,143 and service may even be dispensed with altogether in any case in which service is impracticable.144 This discretion is unfettered, but it will be exercised in favour of the petitioner only in exceptional cases,145 as, for instance, when the possible methods of substituted service are likely to be ineffective.146 Where the service of an application for a matrimonial order147 or other document is to be effected within the EU, the Service Regulation148 applies.149 Where the service is to be effected in a country which is a party to the 1965 Hague Convention,150 and the Service Regulation does not apply,151 the following rules are applicable.152 The application may be served “(a) through the authority designated under the Hague Convention in respect of that country; or (b) if the law of that country permits—(i) through the judicial authorities of that country; or (ii) through a British Consular authority in that country”.153 Where the service is to be effected in a country which is not a party to the 1965 Convention, the application and associated documents may be served, if permitted by the law of that country, “(a) through the government of that References(p. 967) country, where that government is willing to serve it; or (b) through a British Consular authority in that country”.154 Additionally, there are special rules applicable to service in a Commonwealth country which is not a party to the 1965 Convention; the Isle of Man or the Channel Islands; or a British Overseas Territory.155
(b) Staying proceedings156
The breadth of the English jurisdictional rules set out in the Domicile and Matrimonial Proceedings Act 1973 has the consequence that there is a greater risk of divorce and other matrimonial proceedings in respect of the same marriage being pursued in England and in some other country simultaneously. Indeed, there could be several jurisdictions potentially in conflict, as where a wife habitually resident in England, but domiciled in Ireland, petitions for divorce from a husband habitually resident in Ontario, but domiciled in New York. There are related problems in that the concurrent matrimonial proceedings157 may either be in some other part of the British Isles or in some politically foreign country. The provisions in Schedule 1 of the Domicile and Matrimonial Proceedings Act 1973 for the staying of the English proceedings vary according to the identity of the country in which the concurrent proceedings are taking place, ie: (i) a related jurisdiction in the British Isles; (ii) another EU Member State, except Denmark; or (iii) a non-EU Member State, or in Denmark. The rules are set out in section 5(5A) and (6) and Schedule 1 to the 1973 Act, and are subject, by virtue of section 5(6A), to Article 19 of Brussels II bis. In every instance, however, there is an obligation on the petitioner, or a cross-petitioner, when proceedings are pending before the English court to furnish particulars of any proceedings158 in respect of that marriage, or affecting its validity, which he knows are continuing in another jurisdiction.159
(i) Concurrent proceedings in a related jurisdiction—obligatory stays
Paragraph 8 of Schedule 1 to the 1973 Act provides for obligatory stays. Where it appears before the beginning of the trial160 of proceedings for divorce, and only divorce,161 that proceedings for divorce or nullity are continuing in a related jurisdiction elsewhere in the British Isles;162 that the parties of the marriage have resided together after they entered into the marriage; that the place where they resided together when those proceedings began or where they last resided together before those proceedings began is that other related jurisdiction in the British Isles; and that either of the parties was habitually resident there throughout the year ending with the date on which they last resided there together, the English court must, on the application of one of the spouses,163 order the English proceedings to be stayed.164
References(p. 968) The salient features of this obligatory stay are that it only applies to English divorce proceedings and then only when the parties to the marriage are closely and clearly connected with the other jurisdiction in the British Isles. If the English proceedings are other than for divorce, or if the other British proceedings are other than for divorce or nullity, or if the residential connections with the other British jurisdiction are not all satisfied, this does not mean that the other proceedings cannot be stayed. It means, merely, that there will be no obligatory stay and that the question must be considered instead in the context of the court’s discretion to stay the other proceedings. The object of the fairly elaborate criteria as to obligatory stays is to ensure that the proceedings are heard in the more appropriate forum; though it is possible to point to cases where the criteria produce the less appropriate forum.165
(ii) Concurrent proceedings in another EU Member State, except Denmark—Brussels II bis, Article 19
Article 19 (Lis pendens and dependent actions) provides that:
1. Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. . . .
3. Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court. In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised.
Article 3 of Brussels II bis, by its nature, often will confer jurisdiction on the courts of more than one Member State in respect of a single dispute, and so there is a clear need for a provision to deal with the problem of concurrent proceedings and conflicting judgments in the courts of different Member States.166 Article 3 is limited to concurrent proceedings167 in Member States, but it is not limited to proceedings under the bases of jurisdiction set out in the Regulation. Article 19 will apply equally where proceedings relating to divorce, legal separation or marriage annulment168 between the same parties have been commenced in two Member States under their national rules of residual jurisdiction169 (the bases of jurisdiction under Brussels II bis being inapplicable).170
Article 19, like Article 29 of the Brussels I (Recast) Regulation, is a purely mechanical rule, which could lead to a race between the parties and which, arguably, is at odds with the prevailing culture of encouraging parties to attempt to engage in reconciliation and/or mediation processes rather than rushing to litigate.171 Against that, however, the need for expensive litigation, generally conducted concurrently in two jurisdictions, as each party References(p. 969) endeavours to establish that his/her favoured jurisdiction is the more appropriate, has been eliminated.172 The court of the Member State first seised of the matter takes priority, and any court of another Member State must of its own motion decline jurisdiction,173 once the jurisdiction of the court first seised is established in that state. The winner of the race to litigation is the spouse who can show that the court where s/he brought the action is first seised of jurisdiction.174
The rule as to the time at which a court is seised is set out in Article 16 (Seising of a Court), which provides two alternatives,175 namely:
1. A court shall be deemed to be seised:
(a) at the time176 when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent;177 or
(b) if the document has to be served before being lodged with the court, at the time when it is received by the authority responsible for service, provided that the applicant has not subsequently failed to take the steps he was required to take to have the document lodged with the court.
The steps which the petitioner is required to take to effect service will depend on the legal system in question. As with the seising of a court in civil and commercial matters, the fact that Member States will not all be applying the same definition runs the risk that the race to become first seised will be run on unequal terms.178 Additionally, the time zone offset may be a further reason why the “race to court” is run on unequal terms.179 Such scenario was outlined in S v S (Brussels II Revised: Articles 19(1) and (3): Reference to ECJ)180 where following the lapse of judicial separation proceedings in France, at midnight 17 June 2014, the husband—being well aware of the advantage of the French time-zone—filed his divorce petition at 8.20 am local time (ie a time of day when it would have been impossible for the wife to issue divorce proceedings in England).181
References(p. 970) An English court may have to determine whether, and when, a foreign court has been seised; this should be a matter for the national law of that foreign Member State to determine.182 In this regard, problems have arisen in relation to the temporal extent of the seisin under Articles 16 and 19 especially regarding Italy where judicial separation is a necessary precursor to divorce. In particular, in C v S183 the wife’s petition for judicial separation in Italy was declared void by the Italian court due to a non-appearance of the petitioner. The petition was then archived but remained revivable. Hedley J held that the Italian decision had brought the matrimonial proceedings in Italy to an end, with the effect that the Italian court could no longer be regarded as being seised under Articles 16 and 19 of Brussels II bis. His Lordship rightly suggested that Article 19 had to be read purposively, meaning that for a court to remain seised, there must be existing proceedings before it. Any other interpretation would “make a nonsense” of the provision by a “court being seised of a matter about which it can do nothing unless a party revives it”.184 In contrast, however, in Ville De Bauge v China,185 it was held that the Italian court that had been seised of separation proceedings did not lose the seisin after the ending of the separation proceedings but before the expiry of a thirty-day appeal period. As the Italian court remained seised of the matter during the appeal period, both parties were precluded from issuing Italian or English divorce proceedings until the expiration of the appeal period at which the husband issued formal divorce proceedings in Italy.186 An English court will determine whether and, if so, when it has been seised.187 The court seised second cannot examine the jurisdiction of the court first seised. It was held in Trussler v Trussler188 that “any litigant who asserts that there is a lis alibi pendens undertakes an obligation to prove the issue of the lis and the fact that it is still pending as at the date of issue of the proceedings in [England]”.189
Once the jurisdiction of the court first seised has been established, the court second seised must then decline jurisdiction. This avoids the danger of the court second seised declining jurisdiction in favour of the court first seised, and that first court subsequently deciding that it has no jurisdiction.190 There is no discretion given to the courts of either Member State as to whether they should take jurisdiction.
The meaning of the verb “established” for the purposes of Art 19 arose as the central issue in the case of S v S (Brussels II Revised: Articles 19(1) and (3): Reference to ECJ).191 The conflict resulted in Hedley J staying the proceedings and making a reference for a preliminary ruling to the Court of Justic of the European Union (CJEU). The factual scenario was as follows:
The husband issued judicial separation proceedings in France. The wife then filed for divorce in England but her application was dismissed by consent on the basis that the jurisdiction of the French courts had been established under the Brussels II bis Regulation. Later, the husband filed a divorce petition in France but this was also dismissed, because the French judicial separation proceedings were still alive. The husband, however, took virtually no steps to progress those proceedings. Under French law, the judicial separation suit would lapse after thirty months following the first court appointment and whilst these proceedings were ongoing, neither spouse could initiate divorce proceedings. In the present case, the judicial separation proceedings lapsed at midnight on 16 June 2014. Nevertheless, prior to that, on 13 June 2014, the wife had again seised the English court of divorce proceedings.
Hedley J asked the CJEU whether in the case of judicial separation and divorce proceedings brought between parties before the courts of two Member States, Article 19 of Brussels II bis should be interpreted to mean that where proceedings before the court first seised had expired after the second court in the second Member State has been seised, the jurisdiction of the court first seised should be regarded as not being established.192
The CJEU held that once the judicial separation proceedings before the French court lapsed as a result of the expiry of the legal time-limit, the jurisdiction of the French court was no longer established, and, accordingly, criteria for lis pendens were no longer fulfilled.193 Consequently, since the proceedings before the French court first seised lapsed, only the English court remained seised of the dispute.
Article 19 is limited to concurrent proceedings in different Member States. It does not apply to concurrent actions in England and a non-Member State country, such as South Africa. In such cases, an English court will continue to employ traditional rules based upon the doctrine of forum conveniens, and given statutory expression in Schedule 1, paragraph 9 of the Domicile and Matrimonial Proceedings Act 1973, discussed later in this chapter.194
Brussels II bis, Article 20 (Provisional, including protective, measures) Article 20 provides that:
1. In urgent cases, the provisions of this Regulation shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Regulation, the court of another Member State has jurisdiction as to the substance of the matter.
2. The measures referred to in paragraph 1 shall cease to apply when the court of the Member State having jurisdiction under this Regulation as to the substance of the matter has taken the measures it considers appropriate.195
The rule on provisional and protective measures is not subject to the jurisdictional rules of Brussels II bis. It does not require provisional measures to be taken, but rather gives a discretion to a court which has no jurisdiction over the substance of the dispute if four conditions are satisfied:196 (a) the measures are provisional within the meaning of the Regulation; (b) the court has power to grant the measures under national law; (c) the court considers that in the circumstances of the case it is appropriate to grant them; and (d) the case is urgent. In applying to “persons or assets”, Article 20 affects matters outside the scope of the instrument, and References(p. 972) is silent not only on the types of measures which may be taken, but also regarding the extent of their necessary connection with the matrimonial proceedings. The significance lies in the fact that the measures may be adopted by the court of one Member State even though the court of another Member State has jurisdiction over the main dispute. In invoking Article 20, the court of one Member State plays a supporting role to the court of another. The measures terminate, however, when a court in the Member State having jurisdiction over the main dispute delivers a judgment on the basis of Article 3 of the Regulation.
In Wermuth v Wermuth,197 the Court of Appeal was required to consider whether an English order for maintenance pending suit in the sum of £12,500 per month, two-thirds of which was intended to provide the respondent wife with funds with which to litigate, was a protective measure in terms of Brussels II. It had been envisaged by the judge at first instance that the maintenance would run indefinitely. There was no realistic prospect of repayment by the wife, should that have been required by the substantive judgment of the German court in which the divorce proceedings were taking place. The Court of Appeal concluded that, in the light of the substance and duration of the maintenance order, it was neither a protective nor a provisional measure under Article 12 of Brussels II (Article 20 of Brussels II bis), for the maintenance order had not been urgent or protective in accordance with established principles, and it amounted to an unwarranted invasion of the proper function of the German court. Article 12 (Article 20, Brussels II bis) was to be narrowly construed since to do otherwise would be to usurp the power of the court first seised. Lawrence Collins J sounded a word of caution regarding the use of Article 12 (Article 20, Brussels II bis):
Provisional measures vary from one context to another, and from one country to another, but what they have in common is that their object is to ensure that the rights of parties and the ultimate effectiveness of a judgment are not frustrated by the actions of one party pending resolution of their respective rights. In the international context it is vitally important to ensure that provisional measures are not used to frustrate internationally agreed principles of jurisdiction.198
(iii) Concurrent proceedings in a non-EU Member State, or in Denmark—discretionary stays
As stated above, Article 19 of Brussels II bis is limited to concurrent proceedings in different Member States. It does not apply to concurrent actions in England and a non-EU Member State country, such as South Africa. In such cases, an English court will continue to employ traditional rules based upon the doctrine of forum non conveniens, and given statutory expression in paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973. Where, before the beginning of the trial of any matrimonial proceedings199 (other than proceedings governed by Brussels II bis)200 which are continuing before the English courts, it appears that any proceedings201 are pending in another jurisdiction202 in respect of, or capable of affecting, the validity or subsistence of the marriage in question, then the English court has a discretion to stay its own proceedings. It has been held that proceedings in India References(p. 973) for maintenance and for an injunction to allow the wife to reoccupy the matrimonial home do not affect the validity or subsistence of the marriage.203 This discretion is wider than in the case of the obligatory staying provisions in that it applies to proceedings before other foreign204 courts and it also applies to a much wider range of proceedings before the other courts.205 In this case, the court may act not only on the application of a spouse but also of its own motion, and so it might exercise its discretion to stay proceedings in circumstances covered by the mandatory staying provisions where a spouse has not sought such a stay.
The basis on which the court’s discretion is to be exercised is stated to be that the balance of fairness and convenience between the parties, having regard to all relevant factors, including the convenience of witnesses and delay or expense likely to result from a decision whether or not to stay the proceedings, is such that it is appropriate for the proceedings before the other court to be disposed of first.206 It will depend on the facts of each case as to how the judge will draw this balance, but some guidance has emerged from the small number of reported cases directly concerned with the exercise of the discretion. What is clear is that, in determining the principles for the exercise of the discretion under the 1973 Act, the courts are to apply the general approach to the operation of the doctrine of forum non conveniens under the inherent jurisdiction which was developed in the context of commercial cases.207 This means that the discretion under paragraph 9 of Schedule 1 to the 1973 Act ought to be exercised to grant a stay if the defendant can point to another forum which is the appropriate one for trial of the proceedings, provided that the petitioner does not show that justice cannot be done there.208 However, it does not seem that it has to be shown that the foreign forum is clearly or distinctly more appropriate than the English one.209
The drawing together of the statutory and common law approaches was achieved by the House of Lords in De Dampierre v De Dampierre:210
The husband and wife were both French nationals who married in France in 1977. Two years later they moved to London. Then, in 1984, the wife established an antiques business in New York and in 1985 she took their child to live there with her. The wife refused to return and the husband started divorce proceedings in France, whereupon the wife then petitioned for divorce in England.211 The husband sought to have the English proceedings stayed. This was resisted by the wife who claimed that, if she was found to be solely responsible for the breakdown of the marriage, she would receive less financial support from a French court than from an English one.
The House of Lords granted a stay, having little doubt that France was the more appropriate forum, given the wife’s tenuous links with England and that “she voluntarily severed all connections with England before instituting her English divorce proceedings”.212 If France was References(p. 974) the natural forum, then the issue had to be addressed as to whether substantial justice could be done there. In particular, what weight was to be given to the fact that the wife was likely to receive a lower level of financial support from a French than from an English court? In earlier decisions, this had proved to be a factor of considerable significance. For example, in Gadd v Gadd,213 the fact that a wife would receive no financial support in divorce proceedings in Monaco tipped the scales in favour of refusing a stay. Courts should be less influenced by the issue of whether or not financial relief is available in a foreign court, given that the factor of advantage to the petitioner is of less significance since the Spiliada case,214 and that the English courts now have power to grant such relief after a foreign divorce.215 Certainly, in De Dampierre, the House of Lords did not find the difference between French and English matrimonial relief a convincing reason for refusing a stay of the English proceedings.216 In other cases, as well as the availability of remedies,217 other factors existing at the time of the application for a stay218 which have been taken into account are whether any English decree or financial provision order will be recognised in the other country,219 whether continuation of the English proceedings will lead to a speedier outcome of the issue,220 the location of family property and the matrimonial home,221 in the case of proceedings where the main issue relates to the children, their links with the jurisdiction in question,222 and the costs of litigation.223
Finally, it should be mentioned that the English proceedings cannot be stayed once the trial of the main issues has begun, save that the court may stay the proceedings at a later time if the petitioner has failed to furnish particulars of concurrent proceedings in another jurisdiction.224
Implications of Owusu v Jackson225
A question arises in this connection regarding the potential implications for matrimonial proceedings of the ECJ ruling in Owusu v Jackson. References(p. 975) Is it competent for an English court to accede to the plea of forum non conveniens (ie in this context, to grant a discretionary stay under the Domicile and Matrimonial Proceedings Act 1973),226 in circumstances where a defendant, having been sued in a Member State court on the basis of jurisdiction under Article 3 of Brussels II bis, nevertheless argues that the balance of fairness, including convenience, is such that it is appropriate that the English proceedings be stayed in favour of another non-Member State court, which constitutes a competent forum in which the case might be tried more suitably for the interests of all the parties and the ends of justice? In other words, would it be consistent with the Brussels II bis Regulation, in a case where a claimant has commenced proceedings on the basis of Article 3, for a court of a Member State to exercise its discretionary power, available under its national law, to decline to hear proceedings brought against a person who is habitually resident in the territory of a Member State, or is a national of a Member State (or, in the case of the United Kingdom and of Ireland, has his domicile there), in favour of the courts of a non-Member State?
In light of the judgment in Owusu v Jackson, and by analogy with the Court’s reasoning in that case, one might speculate that the ECJ would consider Article 3 of Brussels II bis to be mandatory227 in nature, meaning that an English judge, being persuaded that another, non-Member State forum is appropriate, would not be permitted to stay proceedings against a defendant sued in England on the basis of Article 3. The likelihood is that the ECJ, if asked by means of a preliminary reference to give an interpretative ruling on the point, would deny the possibility of any derogation from the principles enshrined in Article 3, except such as is expressly provided for by Article 7 (residual jurisdiction). The Regulation provides no exception in relation to forum non conveniens, at least in relation to matrimonial proceedings.228 It is highly probable that application, in a case such as has been conjectured, of the doctrine of forum non conveniens by means of the operation of a discretionary stay, would be deemed to undermine the desired objectives of certainty and predictability, which are inherent in the Regulation, as well as to jeopardise the legal protection of persons established in the EU. Thus, by analogous reasoning, it is suggested that the decision in Owusu would be likely to preclude a court in a Member State from declining jurisdiction conferred upon it by Article 3 of Brussels II bis, on the ground that the court of another, non-Member State constitutes an appropriate forum for trial of the proceedings.229
In JKN v JCN,230 however, the High Court held the opposite view, ie that the Owusu principle does not apply to Brussels II bis. The case concerned a couple who married in New York, however, lived in London for most of their marriage. Nevertheless, by the time they separated, they were both living in New York. The wife, after having been advised that she did not satisfy the residence requirement for New York jurisdiction, issued divorce proceedings in England, relying on Article 3 of the Brussels II bis Regulation. The husband filed an acknowledgement of service confirming that he did not intend to defend the proceedings in England but stated that New York was the appropriate forum. He then issued divorce proceedings in New York, and sought to stay the wife’s English proceedings. The wife argued that it was not open to the court to grant a stay of her English petition since, by analogy with the decision in Owusu, where jurisdiction was founded on Article 3 of Brussels II bis, there was no power to grant a stay of English proceedings under the Domicile and Matrimonial Proceedings Act 1973. Theis J held that it was “neither necessary nor desirable References(p. 976) to extend the Owusu principle in cases where there were parallel proceedings in a non-member state”.231 If the Owusu principle applied to Brussels II bis, there would be a risk of irreconcilable judgments as both sets of proceedings would continue.232 Alternatively, the principle was inapplicable to Brussels II bis as there was no “direction connection” between the Brussels I and the Brussels II bis Regulations, and although it was possible to refer to Brussels I in interpreting Brussels II bis where the language was identical, the respective provisions of the Regulations were different in several material respects.233 The court’s discretion to stay under paragraph 9 of Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973 remained in place where the competing proceedings were in a non-Member State.234 Accordingly, the English court retained discretion to stay its proceedings where there were proceedings pending in a non-EU Member State,235 and, as New York was the more appropriate forum,236 the wife’s English proceedings were stayed in favour of the husband’s proceedings in New York on the ground of forum non conveniens. The dicta of Theis J in JKN v JCN was approved by the Court of Appeal in the case of Mittal v Mittal.237 Lewison LJ, with whom Rimer and Jackson LLJ agreed, confirmed the first instance decision of Bodey J that the English court had jurisdiction to stay the wife’s English divorce proceedings on the ground of forum non conveniens, in favour of divorce proceedings commenced earlier by the husband in India. His Lordship held that the dicta in Owusu had “little to do” with the present case, and did not apply to Brussels II bis for six reasons:238 1) Owusu was concerned with a different instrument regulating jurisdiction in the commercial, rather than family law sphere; 2) The legislative language under Brussels I is very different from the language of Brussels II bis; the former being “mandatory, transitive, and prescriptive”, whereas the language of Article 3(1) of Brussels II bis being “intransitive and facilitative”; 3) Owusu did not answer the question whether proceedings should be stayed in favour of competing prior proceedings in a non-Member State, and therefore cannot be regarded as a precedent on that issue; 4) The policy objectives of the two Regulations are dissimilar; 5) Brussels II bis recognises diversity in the legal systems of different Member States, which was one of the objections in Owusu where the ECJ held that the discretionary power to stay proceedings was not recognised in all Member States. As such, the objective of uniformity of procedure would be undermined if only some Member States were to exercise discretion. On the contrary, Article 3 of Brussels II bis recognises different jurisdictional basis in the UK and Ireland to other Member States, implying that complete uniformity of treatment is not inevitable; and 6) The policy underlying Brussels I has itself changed: the Brussels I (Recast) Regulation recognises a discretionary power to stay proceedings where there are parallel proceedings in a non-Member State. Accordingly, if the revised Brussels I Regulation had applied to the present case, the English court would have been permitted to stay the English proceedings.239
References(p. 977) The approach adopted by the High Court in JKN v JCN and the Court of Appeal in Mittal v Mittal seems to be at odds with the latest European developments. The recently published Proposal for a Council Regulation on jurisdiction, the recognition and enforcement of decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction (recast)240 makes it clear that no changes to Article 19 of the Regulation are contemplated as a part of the ongoing Brussels II bis review process.241 This means that, in respect of parallel proceedings, the Brussels II bis (Recast) Regulation will not be following the Brussels I (Recast) Regulation.242 To confirm this, in a document accompanying the Proposal,243 the Commission expressly refers to the judgment in Owusu by stating: “As the Court of Justice has ruled that Member States are not allowed to use any discretion which may exist under their national law to transfer jurisdiction established by EU Regulations, the transfer mechanism could only be created by including it into the Regulation.”244 Contrary to the reasoning of Lewison LJ in Mittal v Mittal, the Commission adds that, although Owusu concerned the Brussels I Convention, “the overwhelming majority of courts and academics applies this statement also to other EU instruments such as the Brussels I Regulation and the Brussels IIa Regulation, as far as matrimonial matters are concerned”.245 This is in line with the view advocated earlier in this Chapter.246
A related question which arises is whether the plea of forum non conveniens might be sustained (ie in this context, whether a discretionary stay might be granted in terms of the Domicile and Matrimonial Proceedings Act 1973),247 in cases where jurisdiction is exercised by a Member State court on the basis of Article 7 (residual jurisdiction)248 of Brussels II bis.249 The situation envisaged here is where the proceedings in question are within the subject matter scope of Brussels II bis, but where none of the bases of jurisdiction set out in Article 3 comes into operation in a given case. According to Article 7 of the Regulation, jurisdiction in this situation is determined by the laws of each Member State.
Despite Owusu, it might be speculated that, where the jurisdiction of a court of a Member State is established pursuant to Article 7, the court in question would not be prevented from declining to exercise its jurisdiction, in accordance with the doctrine of forum non conveniens (ie in this context, on the basis of a discretionary stay under the 1973 Act), on the ground that the court of a non-Member State would be an appropriate forum for trial of the proceedings.250 Where the alternative forum is a non-Member State, it may be assumed, with some confidence, that the exercise of a forum non conveniens discretion still would be available. Where, however, the alternative forum is another Member State, it seems most unlikely that the CJEU would interpret the provisions of the Regulation in such a manner as would sanction the continuing exercise of a forum non conveniens discretion.251 A further consideration in support of this view, and a practical danger, corresponding to that mentioned previously References(p. 978) in relation to civil and commercial matters,252 is that even if an English court, the jurisdiction of which has been “established”, should attempt to exercise its discretion and to stay English proceedings in favour of an alternative Member State forum, the court “second seised” would be bound to decline jurisdiction on the basis of Article 19 (lis pendens) of Brussels II bis.253 The risk, therefore, would be that no court would exercise jurisdiction in the given case to hear the proceedings.
(iv) General matters
In the case of both obligatory and discretionary stays, the English court has a power, on application by one of the parties to the proceedings, to discharge the order staying any proceedings if the other proceedings are stayed or concluded, or if there has been unreasonable delay in prosecuting them.254 Once an obligatory stay has been discharged the proceedings cannot again be obligatorily stayed;255 though a discretion to stay remains but cannot normally be exercised once the trial of the English proceedings has begun. Special provision is made for the granting of ancillary relief in the case where English proceedings are stayed because proceedings are pending in another British jurisdiction.256 It should be mentioned that the staying provisions contained in the Domicile and Matrimonial Proceedings Act 1973 are in addition to, and not in substitution for, any other power to stay proceedings.257 The inherent power to stay was rarely used in matrimonial proceedings,258 but, as we have seen, there is now little difference between the statutory power to stay and the developed common law doctrine of forum non conveniens.259
(c) Restraining foreign proceedings (anti-suit injunctions)
The English court has long had the inherent power, in matrimonial proceedings, to restrain by injunction a party who wished to pursue foreign matrimonial proceedings;260 but it is a power which has been sparingly and carefully exercised. Lord Goff in the Privy Council261 and in the House of Lords262 has laid down the principles on which this inherent power is to be exercised in the commercial context, and the Court of Appeal has made clear in Hemain v Hemain263 that such principles are to be applied in matrimonial cases.264
References(p. 979) In the commercial context, the decision in Turner v Grovit265 made plain that the use by one EU Member State forum of an anti-suit injunction to seek to restrain a party from litigating in the court of another Member State is not acceptable, as being tantamount to interference with the jurisdiction of the foreign court, and in breach of the obligation on the courts of Member States to refrain from acting in a manner that is incompatible with the Brussels I Regulation. Whether, in a family law context, the Brussels II bis Regulation would be construed in like manner, as precluding the grant by a court in one Member State of an injunction prohibiting a party to proceedings before it from commencing or continuing proceedings in the court of another Member State, is a matter of speculation. It is not clear whether it would be deemed inconsistent with the Brussels II bis Regulation for one Member State court to grant an injunction against a defendant who is threatening to commence or continue matrimonial proceedings in a “foreign” court.
In the light of the decision in Turner v Grovit, and by analogy with the Court’s reasoning in that case, it might be thought likely that the ECJ, if asked by means of a preliminary reference to give an interpretative ruling on the point, would deny the availability of an injunction restraining foreign proceedings as a remedy in a matrimonial case, at least in the situation where it is sought to restrain proceedings in another Member State. This, it is suggested, would probably be the decision, regardless of whether the court exercising jurisdiction were doing so on the basis of Article 3 (general jurisdiction), or Article 7 (residual jurisdiction) of Brussels II bis. It is submitted that an injunction in these circumstances would be very likely to be judged incompatible with the regime put in place by Brussels II bis.
Where, however, the proceedings sought to be restrained are in a non-Member State, the position would be less clear. This would be the situation where an English court has jurisdiction under one of the bases set out in Article 3 of Brussels II bis, and the claimant in those proceedings seeks to restrain a party from commencing or continuing proceedings in a non-Member State. The injunction, if granted, would constitute, in effect, an interference with the jurisdiction of a non-Member State court only. In this situation, it could plausibly be argued that this would not be incompatible with the Brussels II bis regime. Indeed, as previously stated in relation to civil and commercial matters, in these circumstances the injunction, if anything, would be being utilised to uphold the jurisdiction allocated under Brussels II bis, and so its grant ought not to be viewed as being incompatible with the Regulation. Likewise, where the jurisdiction of a Member State court is established pursuant to Article 7 of the Regulation, this, it is submitted, should not prevent the court from granting an injunction prohibiting a party to proceedings before it from commencing or continuing proceedings in the court of a non-Member State.
(b) Choice of law
(i) Divorce and judicial separation266
At common law, the sole basis of the jurisdiction of the English courts in divorce was domicile267 and no choice of law problem arose. English law was applied and this could be justified either as the application of the law of the domicile268 to issues affecting status or as the application of the law of the forum on the basis that dissolution of a marriage is a matter which References(p. 980) “touches fundamental English conceptions of morality, religion and public policy”,269 and one which is governed exclusively by rules and conditions imposed by the English legislature.
The need for a choice of law rule arises when the court possesses jurisdiction on some basis other than domicile, as may be illustrated by Zanelli v Zanelli:270
An Italian national, domiciled in England, married an Englishwoman in England in 1948. Later he was deported from England and thereupon reverted to his Italian domicile. The Matrimonial Causes Act 1937, which was then in force, had given the English court jurisdiction in divorce (and also judicial separation) in such a case,271 but it did not impose a rule for the choice of law.
The court, applying English domestic law but without any consideration of the choice of law issue, granted the wife a decree of divorce, despite the rule of the Italian law of her domicile at that time that divorce was not permissible. A similar approach, namely the uniform application of English law, was seen in the case of judicial separation not only where, at common law, jurisdiction was taken on the basis of domicile,272 but also on the basis of residence273 or of a matrimonial home within the jurisdiction,274 even though the parties were domiciled elsewhere.
The English common law rules were later extended to permit divorce and nullity (but not judicial separation) decrees to be granted on the basis of three years’ residence in England by a wife,275 and at that point a statutory choice of law rule was introduced both for this case and for that exemplified in Zanelli v Zanelli, ie the domicile of the wife in England immediately prior to the husband’s desertion or deportation. This choice of law rule provided that the court should apply “the law which would be applicable thereto if both parties were domiciled in England at the time of the proceedings”.276
Strangely, this rule was cast in terms which pointed more to the law of the domicile than to the law of the forum. The latter approach could have been expressed far more simply by just saying that English law was applicable. Whilst the two statutory jurisdictional grounds available to the wife prevented considerable hardship in the case of divorce, they did not provide nearly so far-reaching an inroad into the basic jurisdictional rule dependent on domicile as was made by the Domicile and Matrimonial Proceedings Act 1973, and subsequently by the Brussels II and II bis Regulations.277 Habitual residence is now, in practice, the main jurisdictional basis. The two statutory grounds available to a wife, and the attendant choice of law provision, have been abolished.278 There is now no statutory choice of law rule. It was undoubtedly the intention of the Law Commission, in proposing the reforms which led to the 1973 Act, that English law should be applied,279 but this does raise the issue whether such a rule is desirable.
References(p. 981) Whilst some civil law jurisdictions are prepared to consider the relevance of the divorce law of countries other than the forum,280 the general approach of the common law is to apply the law of the forum.281 It is not self-evidently correct that this should be so. One argument in favour of the law of the forum is that divorce law may be regarded as part of the public law of the forum and so should be applied as part of that country’s mandatory laws governing the continuance of a marital relationship within that particular society.282 This argument is strongest in a jurisdiction, like many in the USA, with narrow rules for both jurisdiction and the recognition of foreign divorces. In England—where both sets of rules are broader—it may be much less obvious that parties have a close connection with the forum, especially if they can obtain a divorce abroad and readily have it recognised in England even though obtained on grounds unavailable under English law.283 A further argument in favour of the law of the forum is that it would cause delay and create expense to apply foreign law to English petitions for divorce or judicial separation, most of which are undefended; and it has also been suggested that to “require English courts to dissolve marriages on exotic foreign grounds would be distasteful to the judges and unacceptable to public opinion”.284 These are dangerous arguments if carried too far. It is always easier and cheaper to apply the law of the forum, but nowhere else in English choice of law rules do we generally apply the law of the forum as such. If we are prepared to take jurisdiction over “exotic foreigners”, under broad jurisdictional rules, it is arguably no more distasteful to apply their personal law to the dissolution than to apply it, as we do,285 to the creation of their marriage.
There are certainly those who advocate the application of the party’s personal law, ie the law of their domicile, to divorce and judicial separation—that being the law which should govern matters of status. The main argument in favour of applying the law of the domicile is that dissolution of the marriage affects the status of the parties no less than does the creation of the marriage and is a substantive, not just a procedural, matter. Whilst the public policy of the forum may have a role to play, as elsewhere in choice of law matters,286 this should not, it is said, be to the exclusion of other laws. There is, however, a practical difficulty with the application of the law of the domicile. Since a wife may acquire a separate domicile, and this is more likely to have occurred if the marriage has broken down and one spouse is petitioning for a divorce, it would have to be determined which spouse’s domicile is to be regarded as the relevant one for choice of law purposes. The answer to such a question can be little more than arbitrary and militates against the application of the law of the domicile.
The arguments on choice of law in divorce and judicial separation have been summed up thus:
The decision on choice of law rules in divorce must depend upon a balance between principle, which undoubtedly points to the application of the personal law, and pragmatism which favours the lex fori. It is no surprise that the civil law supports the former and the common law the latter. What is worrying about the common law approach is that a rule which was historically justified by its jurisdictional link has been maintained with little real consideration of the implications of breaking that jurisdictional link.287
(p. 982) The Matrimonial Causes Act 1973, unlike its predecessors, is silent on choice of law matters relating to divorce and judicial separation, though the fact that there is no express saving for the rules of private international law in the case of divorce and judicial separation, such as there is in the case of nullity,288 provides some tacit support for the application of the law of the forum. There is no doubt, however, that in practice English law is applied to all petitions for divorce or judicial separation which come before the English courts.289 The rules of English law existing at the time of the proceedings are applied and they will decide whether there is a good cause for divorce or judicial separation, and will determine the form of relief and the conditions on which the decree will be granted. Any other legal system, such as the law under which the parties married, the law(s) of their domiciles or nationalities, or the law of the place where the facts on which the petition is based took place, is completely irrelevant.290 It should be mentioned that under English law it does not matter that the facts evidencing breakdown of the marriage did not constitute a basis for divorce in the country where they took place,291 or in the country of the parties’ domiciles.292 Nor does it matter that the ground for divorce was not a ground under English law at the time that the cause arose.293
As stated above,295 in July 2006, the European Commission published a Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters.296 The United Kingdom government decided not to opt into a resulting instrument due to the “legal and practical issues relating to application of foreign law in this sensitive area”.297 Other Member States also found the provisions on applicable law contained in the Proposal to be problematic. This resulted in the Proposal being eventually withdrawn by the Commission.298 In July 2008, 14 Member States presented the Commission with a request in which they sought to establish enhanced cooperation299 among themselves in the area of applicable law in divorce and legal separation. The Commission’s response to the petition was positive.300 On 12 July 2010, the Council adopted a decision authorizing enhanced cooperation in the area of the law applicable to divorce and legal separation between the participating Member States.301References(p. 983) Consequently, the participating Member States adopted Council Regulation (EU) No 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (“Rome III”), which became applicable on 21 June 2012.302
The Regulation is intended to operate in tandem with the Brussels II bis Regulation.303 Rome III applies in relation to the dissolution of matrimonial ties, and the law determined by the Regulation applies solely to the grounds for divorce and legal separation.304 The Regulation enhances the parties’ autonomy in matrimonial matters305 as the rule contained therein is based, in the first instance, on the possibility of choice of law by the spouses.306 The choice is confined to either the law of the forum or laws with which the spouses are deemed to have a close connection.307 This close connection is to be demonstrated by the chosen law being either the law of the State: (a) where the spouses are habitually resident at the time the agreement is concluded, or (b) where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or (c) of the nationality of either spouse at the time the agreement is concluded.308
In the absence of choice of the applicable law, a hierarchical rule applies whereby the governing law is the law of the state (a) where the spouses have their common habitual residence at the time the court is seised; or failing that (b) where the spouses had their last common habitual residence, as long as the period of residence did not end more than 1 year before the court was seised, and in so far as one of them still resides there at the time the court is seised; or failing that (c) of which both spouses are nationals at the time the court is seised; or failing that (d) where the application is lodged.309 Commendably, the Regulation sets out clear rules in relation to renvoi,310 material and formal validity of the parties’ choice of law agreement,311 the conversion of a legal separation into divorce,312 and territorial313 and inter-personal314 conflict of laws. The worrying aspect of the Regulation, however, is that the instrument is of universal application, ie the parties’ choice of law, and the applicable law in the absence of choice of law, is not restricted to the law of a European Union Member State.315 Although the principle of universal application is familiar in choice of law in contract316 and has been adopted in relation to choice of law concerning non-contractual obligations,317 its appropriateness in the context of family law is questionable. Indeed, how desirable would it be for an References(p. 984) English court to be required to apply for example the provisions of the Muslim Family Law Ordinance of Pakistan, were spouses to agree upon the application of the law of Pakistan? Even though the drafters of the Regulation sought to alleviate the concerns over the potential application of the law of a non-EU Member State through the inclusion of a number of safeguards,318 these did not suffice to persuade the UK to take part in the enhanced cooperation measure.
Whilst a harmonised choice of law rule in itself might be an attractive prospect,319 and would help to offset any tactical advantage which a party intent on forum shopping (aided by the operation of the lis pendens doctrine) might enjoy,320 opting into the Regulation would override the certainty and ease of application afforded by the choice of law rule currently applied by the legal systems of the United Kingdom, in terms of which the applicable law is the domestic law of the forum.321
Whilst divorce gives rise to few choice of law problems, the same cannot be said for nullity. The reasons for this are varied. A nullity decree is concerned with the validity of the creation of a marriage, unlike divorce which dissolves a marriage which is admittedly validly created. This means that the choice of law issues in nullity are essentially the same as those already examined in the context of marriage. The question to be asked is the same—is the marriage valid or invalid? General issues of formal and essential validity have already been examined323 as matters relating to marriage. But others, such as lack of consent and physical defects, are considered here because they tend to arise in nullity petitions. Another reason why choice of law in nullity is a more difficult area than divorce is that the effects of annulment vary according to the particular ground in issue and they vary in relation to the same ground even within the United Kingdom. Some defects avoid a marriage ab initio, ie render it void, whilst others merely render it voidable.324 These distinctions can readily be exemplified. If one party is below the minimum age of marriage or is already married, English law regards the marriage References(p. 985) as void.325 If, however, a decree is granted in England on the ground of lack of consent, the marriage will be regarded as voidable.326 In Scotland, on the other hand, lack of consent renders the marriage void ab initio.327 Again, impotence or wilful refusal to consummate the marriage renders it voidable under English law;328 whereas in Scotland, although impotence also renders the marriage voidable, wilful refusal has no effect on its validity.
The difference between void and voidable marriages is significant.329 “A void marriage is no marriage. Considered literally the expression is self-destructive and contradictory. But without misleading anyone it serves to denote the situation where a ceremony of marriage does not bring about a marriage.”330 No proceedings are necessary to establish the fact of its nullity, though it may in practice be wise to take them, eg to obtain maintenance for the “wife” and any child of the “marriage” or to still doubts as to one’s status where the position is disputed. Moreover, any member of the public may treat the marriage as void, notwithstanding the absence of a decree, as, for instance, by withholding payment of money that is due to the woman conditionally on her being the wife of the man.
On the other hand: “A voidable marriage is one that will be regarded by every court as a valid subsisting marriage until a decree annulling it has been pronounced by a court of competent jurisdiction.”331 So the effect of a defect, like impotence, that renders a marriage voidable in England is such that the status of the parties as husband and wife, having sprung from a contract free from imperfection, cannot be affected until the existence of the defect has been proved, and therefore the rule is that the marriage is valid and must be treated as such by every court and every person until it has been judicially declared void. No one but the parties themselves can be heard to deny that they are married or can challenge, by nullity proceedings or otherwise, the validity of their marriage. Until either of them obtains a decree of nullity, all the normal consequences of the married status ensue, both inter se and as regards third parties.
There are also further differences in relation to the effects of an annulment. The annulment of a void marriage has retrospective effect; it declares the marriage never to have existed. However, the position is different in England in the case of a voidable marriage. Although the annulment of such a marriage had retrospective effect at common law, the position in the case of nullity decrees granted after 31 July 1971 is that the decree operates to annul the marriage prospectively only from the date of the decree absolute. Until that time the marriage must be treated as subsisting.332
A further difficulty in nullity cases is the all too common disregard of the elementary and primary distinction between jurisdiction and choice of law. The tendency of the judges, in cases involving lack of consent or physical incapacities, after surmounting the problem of jurisdiction, has been to apply the internal law of England as a matter of course.333 Not only does this mean that the principles on which the choice of law depends are undeveloped, but References(p. 986) it is particularly regrettable that the personal law should be deprived of its control over the married status.
(b) Classification of the nature of the defect
The ascertainment of the proper law in a nullity suit depends on analysing the various defects that may constitute cause for annulment, in order to determine their intrinsic nature. Once this is done, the legal system to which a particular defect is subject should become apparent. The consequence of this analysis is that, once the court has jurisdiction, then, in order to determine the law applicable to some alleged defect, it applies its own characterisation to decide whether the defect is as to form or essential validity. If, for example, it is the former, then it applies the rules of the law of the place of celebration to the issue in question. This may be illustrated by the British Columbia decision in Solomon v Walters,334 where the facts were these:
A marriage had been celebrated in Nevada between the husband, domiciled in British Columbia, and the wife, apparently domiciled in Alberta. The wife petitioned in British Columbia for a nullity decree on the ground of lack of parental consent as required by Nevada law, though by the domestic law of British Columbia the marriage was unaffected by the defect; by Nevada law it was rendered voidable.
The judge, having classified the defect as one of form, applied Nevada law and granted a decree of nullity. If the defect is as to capacity, then as has been seen,335 the court should apply the ante-nuptial domiciliary law of the party alleged incapable.
It remains to consider other, more problematical, choice of law areas, namely lack of consent and personal physical defects.
(c) Lack of consent: is it formal or essential?
There is no settled authority as to whether defects affecting consent to marry are to be classified as akin to form, and thus to be governed by the law of the place of celebration, or as personal defects, thus raising questions of essential validity to be referred to the personal law of the parties.336 There is a variety of different grounds on which an allegation of lack of consent can be based,337 not all of which are sufficient in English domestic law. It may be argued that one party was mistaken as to the identity of the other party338 or as to the marriage ceremony,339 or that the marriage was entered into as the result of fraud340 or fear caused by duress or coercion,341 or during mental illness,342 or there may have been a mistake as to the legal effects References(p. 987) of the ceremony,343 or as to the attributes of the other party,344 or cases where one or both parties has/have made mental reservations as to the effect of the ceremony.345 What is remarkable is that the English courts for many years failed to realise that a choice of law problem existed in such cases and invariably applied English law. It is a masterly understatement to say that, “there has been some difference of opinion as to what law applies”.346 Indeed, virtually the only cases in which there has been any discussion of the issue have been those where it was not necessary for the decision.
(i) Application of the law of the forum
The only solution supported by all the direct authorities is reference to English law as the law of the forum in “consent” cases, but this is, in truth, an abdication from the problem. The decisions can be explained as having been reached per incuriam, and so reference to the law of the forum should only be accepted on such merits of principle as it may have. It has been suggested347 that the law of the forum can be applied to cases of mistake as to the legal nature of the ceremony and to sham marriages, but not to cases of mistake as to the legal effects of the marriage which should be referred to the law of the mistaken party’s ante-nuptial domicile.348 The justification that the former concern issues of fact more appropriate for the forum than the issues raised in the latter case is not convincing, because the determination of a factual question, such as whether or not duress existed, does not of itself resolve the problem of the effect of such duress on the validity of the marriage.
The common judicial attitude of ignoring choice of law issues so far as the parties’ consent is concerned may be illustrated by Buckland v Buckland.349 Here a marriage celebrated in Malta between two Maltese domiciliaries was declared a nullity by an English court on the ground that the petitioner had gone through the ceremony because of fear of an unjust prosecution if he did not. Only English law was referred to, and yet the only connection with England was that, by the date of the proceedings, the petitioner had become domiciled in England. Determination of the applicable law could have been referred to other legal systems, whose varied claims we must now examine.
(ii) Application of the law of the place of celebration
In Parojcic v Parojcic,350 Davies J referred the question of the effect of duress to English law as the law of the place of celebration. Despite this dictum, the view that that law should govern only “the method of giving consent as distinct from the fact of consent”351 seems preferable. This is because, even in the sphere of commercial contracts, the issue of the parties’ consent is not referred to the law of the place of contracting.352 Indeed, it would seem that a marriage may comply with all the formal requirements of the law of the place of celebration and yet References(p. 988) lack essential validity because of lack of consent.353 Thus, even though reference to the law of the place of celebration is in accordance with many of the cases, there are certainly others which militate against it.354
(iii) Application of the law of the domicile
The same can also be said of the opinion that “no marriage is (semble) valid if by the law of either party’s domicile he or she does not consent to marry the other”.355 There are at least three English decisions356 in which the validity of a marriage, so far as consent is concerned, has been considered without reference to the domiciliary law of one or both of the parties. The weight of opinion does, however, favour reference of the issue of consent to the law of the domicile. The view that lack of consent is a personal defect was accepted by Hodson J in Way v Way:357
The petitioner, a British subject domiciled in England, went through a ceremony of marriage at Archangel with the respondent, domiciled in Russia, as the result of which he believed that he had been legally married. He later claimed annulment on the grounds (1) that certain formalities required by Russian law had been omitted and (2) that the marriage was void for want of consent, since he believed at the time of the ceremony that his wife would be allowed to accompany him to England (which was not permitted by the Soviet authorities) and also that it was the duty of both parties to live together. According to Russian law he was mistaken in both respects.
Hodson J began by finding that there had been no neglect of Russian formalities. He went on to propound the doctrine that “questions of consent are to be dealt with by reference to the personal law of the parties rather than by reference to the law of the place where the contract was made”, with the result that “the matrimonial law of each of the parties” had to be applied.358 He then held that, by English law, which was the personal law of the petitioner, consent is not nullified by a mistake of the kind pleaded, ie mistake as to attributes, a finding with which it is impossible to disagree.
The Court of Appeal359 held the marriage to be void on the ground that the Russian formalities had not, in fact, been observed, and therefore anything that was said about the law to govern the question of consent was obiter. However, Sir Raymond Evershed MR was “prepared to assume” that Hodson J was correct in referring the question to the personal law of the parties.360
This decision to refer issues of consent to the law of the domicile was followed in Szechter v Szechter:361
The husband, his first wife and his secretary, Nina, all were domiciled in Poland. The secretary was imprisoned for “anti-state activities” and her health deteriorated rapidly. In order to obtain her release from prison, the husband secretly divorced his first wife and in 1968 married Nina in prison. Shortly thereafter she was released from prison and all three came to (p. 989) England, where they acquired a domicile. Nina petitioned for the annulment of her marriage on the grounds of duress, so that the husband and first wife could resume their married life.
These facts undoubtedly raised an issue of choice of law. Polish law was the law of the place of celebration and the law of the domicile of both parties at the time of the marriage. English law was the law of the forum and the law of the domicile at the time of the proceedings. Both legal systems agreed that the marriage was void for duress. However, Sir Jocelyn Simon P concluded that it was for Polish law, as the law of the domicile of the parties at the time of the marriage, to determine the validity of the marriage.362 In so doing, he approved the proposition in Dicey and Morris363 that “no marriage is valid if by the law of either party’s domicile one party does not consent to marry the other”.364 The editors of that work have, however, accepted365 the suggestion made in these pages366 that the issue of a party’s alleged lack of consent to marry should be determined by reference to that person’s ante-nuptial domiciliary law, and not to the law of both parties’ ante-nuptial domiciles.367
It seems adequate to analyse the issue of consent as a personal issue to be referred to the law governing capacity, without requiring a wife to have consented not only according to her own law but also according to her husband’s, or vice versa. This was the approach taken in Scotland in Singh v Singh.368 The case concerned a United Kingdom citizen, domiciled in Scotland, who sought declaration of nullity of her marriage, celebrated in India, in 2001, to an Indian national, on the grounds of her lack of consent and that the marriage had been entered into under duress. The judge, RF Macdonald QC, declining to follow the obiter dictum of Lord Guthrie in Di Rollo v Di Rollo369 that the question of consent should be decided by the law of the place where the marriage was celebrated,370 held that the law governing the issue of consent to marriage was the law of the domicile of the party claiming lack of consent.371 In the instant case, by the law of the petitioner’s Scottish domicile, the threats from her mother were deemed to be of a serious nature, amounting to threats of immediate danger to her liberty, which caused her will to be overborne, and vitiated her consent to marry. Declarator of nullity of marriage was granted.
Application of the law of the domicile to issues of consent was supported by the Court of Appeal in Vervaeke v Smith.372 A major issue in this case was whether the English courts would recognise the validity of a Belgian nullity decree;373 but the Court of Appeal also gave some consideration to the original validity of the marriage in question. The marriage had taken place in England between a woman domiciled in Belgium and a man domiciled in (p. 990) England. This was essentially a sham marriage whose purpose was to give the woman British nationality. Such a marriage, though valid under English law, was void under Belgian law. Nevertheless, its validity was upheld under the exception to the dual domicile rule provided by Sottomayor v De Barros (No 2)374 in that the marriage was valid by English law, that of the domicile of one party and the place of celebration.375
In their examination of the choice of law rules relating to marriage, the Law Commission considered the issue of the law to be applied to matters of consent.376 They suggested that, although some arguments can be advanced in favour of the application of the law of the forum, issues of consent are concerned with the essential or substantive validity of a marriage and that “it would be contrary to principle and inconvenient in practice to fragment the question of essential validity”.377 This led to the conclusion that the law of the domicile should govern issues of consent, as it probably does already; and the Law Commission favoured reference to the domiciliary law of the person whose consent is alleged to be defective, rather than the formulation approved in Szechter v Szechter.378 Certain other piecemeal measures have been implemented concerning consent to marriage:
Forced Marriage (Civil Protection) Act 2007
Royal Assent was given on 26 July 2007 to the Forced Marriage (Civil Protection) Act 2007. The Act, which was introduced by Lord Lester of Herne Hill as a Private Member’s Bill,379 applies to England and Wales, and Northern Ireland. The aim of the Act, which inserts a new Part 4A into the Family Law Act 1996, is to provide civil protection against forced marriage380 in England and Wales, and Northern Ireland.381 Forced marriage is defined in the Act as a situation in which one person, “A”, is forced, by means of coercion by threats or other psychological means,382 by another person, “B”, into a marriage,383 with B or another person, without A’s free and full consent.384 It is irrelevant whether B’s conduct is directed against A, B, or another person.385 The Act empowers the High Court or the family court386 to make a forced marriage protection order, ie an order for the purposes of protecting (i) a person from being forced into a marriage or References(p. 991) from any attempt to be forced into a marriage; or (ii) a person who has been forced into a marriage.387 An application may be made for an order by the person who is to be protected by the order, or by certain third parties.388 A forced marriage protection order may contain such prohibitions, restrictions, requirements, or other terms as the court considers appropriate for the purposes of the order.389 In deciding whether to exercise its powers, the court must have regard to all the circumstances, including the need to secure the health, safety and well-being of the person to be protected.390 In ascertaining that person’s well-being, the court must have regard, in particular, to his/her wishes and feelings, so far as they are reasonably ascertainable, and as the court considers appropriate in the light of the person’s age and understanding.391 Breach of a forced marriage protection order is a criminal offence with a maximum penalty of five years’ imprisonment.392 Alternatively, a protected person who does not want to pursue criminal proceedings, can apply for an arrest warrant for breach of a forced marriage protection order in the civil court.393 The 2007 Act does not affect any other protection or assistance which currently is available to victims of forced marriage, such as the inherent jurisdiction of the High Court, criminal liability, civil remedies under the Protection from Harassment Act 1997, or the law of marriage.394
Although the Act contains no conflict of laws provisions as such, it is intended to have extra-territorial import in so far as the terms of a forced marriage protection order may relate not only to conduct within England and Wales, but also (or instead of) to conduct outside England and Wales.395 Thus, for example, a forced marriage protection order may be sought in England by a young girl living there who fears that she may be taken by her parents from the United Kingdom, against her will, for the purpose of forced marriage abroad.396 An order References(p. 992) may affect respondents who force, or attempt to force, a person to enter a marriage, as well as persons who aid, abet, counsel, procure, encourage or assist the forcing, or attempted forcing, of a marriage.397
Asylum and Immigration (Treatment of Claimants, etc) Act 2004
Sections 19 to 24 of the 2004 Act398 establish a regime, for England and Wales, Scotland and Northern Ireland, the aim of which is to prevent the abuse of immigration rights by means of sham marriages. The procedure is applicable where a marriage is to be solemnized in the UK and a party to the marriage is subject to immigration control.399
The position in Scots law
The subject of sham marriages and marriages of convenience has provoked considerable interest in recent years in Scots law.400 The outcome has been a statutory response, in sections 2 and 38 of the Family Law (Scotland) Act 2006. Section 38, in the part of the Act headed “private international law”, provides in sub-section (2) that the question whether a person who enters into a marriage (a) had capacity;401 or (b) consented, to enter into it shall be determined402 by the law of the place where, immediately before the marriage, that person was domiciled. This provision makes it clear, therefore, that consent to marry is a matter to be determined by a person’s ante-nuptial domicile. Section 2 of the Act inserts a new section 20A (Grounds on which marriage void) into the Marriage (Scotland) Act 1977. Separate provision is made for marriages solemnised in Scotland where (a) at the time of the marriage ceremony a party to the marriage who was capable of consenting to the marriage purported to give consent, but did so by reason only of duress403 or error;404 and (b) at the time of the marriage ceremony a party to the marriage was incapable of (i) understanding the nature of the marriage; and (ii) consenting to the marriage. In each case, the marriage shall be void.405 In contrast, if a party purported to give consent to the marriage other than by reason only of duress or error, the marriage shall not be void by reason only of that party’s having tacitly withheld consent to the marriage at the time when it was solemnised.406 The latter provision, which is aimed at tackling the problem of sham marriages, is a References(p. 993) legislative answer to difficulties encountered by the Scottish courts, and “establishes a criterion of consent, objectively construed, to marriage”.407
As stated above,408 on 21 June 2012, the Council Regulation (EU) No. 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (“Rome III”) came into effect. Unlike the Brussels II bis Regulation in respect of jurisdiction in matrimonial matters,409 the Rome III Regulation extends only to divorce and judicial separation.410 Indeed, the Regulation does not apply to marriage annulment, even if the issue arises “merely as a preliminary question within the context of divorce or legal separation proceedings”.411
(d) Physical defects412
It remains to identify the law which governs other personal physical defects. These can encompass a wide range of grounds of invalidity, as is illustrated by those which render a marriage voidable under section 12 of the Matrimonial Causes Act 1973: impotence, wilful refusal to consummate the marriage, mental disorder such as to render the person unfitted for marriage, venereal disease, that the woman was pregnant by another man, that, after the time of the marriage, an interim gender recognition certificate has been issued to either party to the marriage under the Gender Recognition Act 2004, or the respondent is a person whose gender at the time of the marriage had become the acquired gender under that Act. In the context of English law, a nullity petition on the ground of the respondent’s pregnancy or suffering from venereal disease may only be brought if the petitioner is unaware of this fact and so such grounds could be regarded more properly as relating to the reality of the petitioner’s consent and thus to be governed by the law appropriate to that issue.413 However, other legal systems do not necessarily take the same approach and, in any event, the consent classification cannot so readily be applied to issues such as wilful refusal or impotence. Two issues are raised: what are the current choice of law rules to govern these personal physical defects, and are the rules appropriate and adequate?
(i) What is the present law?
It is not easy to resolve the first issue and state the current law with any confidence. The main defects to consider are impotence and wilful refusal, but the authorities are far from clear as to what law is to govern these defects. There is some authority to support the application of the law of the domicile, of the place of celebration or of the forum. The difficulty with the decisions is that in all but one of the cases414 English law has been applied, often with little or no consideration of the choice of law issue. Even when that issue is considered, the varied dicta seem to be at odds with the facts of the reported decisions. For instance, in Robert v Robert415 wilful refusal is characterised as an “error in the quality of the respondent”416 to which the References(p. 994) law of the place of celebration should be applied.417 Against such classification may be cited Way v Way,418 where English law was applied to a nullity petition based on wilful refusal arising from a marriage celebrated in Russia; and Ponticelli v Ponticelli,419 where English law was applied though the place of celebration was Italy.
The confused state of the cases can be further illustrated by the fact that application of the law of the husband’s domicile at the time of the marriage is supported by some decisions420 on impotence and wilful refusal but is inconsistent with others.421 Again, application of English law as the law of the forum finds support in some cases,422 but not in all.423
(ii) What ought the law to be?
If the cases provide no clear guide to the law to govern nullity petitions based on personal physical defects, are there obvious principles which might guide courts in the future? Application of the law of the place of celebration can be rejected. The defects in question cannot be classified as relating to formalities of marriage. Support can be found in principle for the application of both the law of the domicile and the law of the forum. If one regards defects such as impotence, pregnancy by another man, mental disorder, and the fact that the respondent was suffering from venereal disease, as matters of essential validity akin to capacity, then the relevant law to determine the effect of such alleged invalidity is that of the domicile.424 It is, however, more difficult to adopt that approach in the case of wilful refusal to consummate the marriage. It is a post-nuptial defect and it might be thought inappropriate to apply the law of the domicile existing at the time of the marriage to a ground of annulment more akin to evidence of irretrievable breakdown of the marriage justifying divorce. Indeed, the divorce analogy would provide support for applying the law of the forum.425
It might seem that the easy answer would be to have different choice of law rules for defects which are ante-nuptial, eg impotence, as opposed to those which are post-nuptial, eg wilful refusal. This is, however, an impracticable solution because the two grounds are frequently pleaded in the alternative and, as the Law Commission has pointed out, “it would be undesirable and inconvenient if different choice of law rules were to apply, depending on whether non-consummation was due to inability to consummate or unwillingness to do so”.426 This means that either the law of the domicile or the law of the forum must apply to both impotence and wilful refusal.
Although arguments in favour of the law of the forum are good, they are not good enough. It is easier, and cheaper, to apply the law of the forum than any other law; but that argument References(p. 995) can be used in relation to choice of law in any context, yet it is not generally accepted, save in the case of divorce. Wilful refusal may be like divorce in its post-nuptial character, but it is significant that English law has chosen to regard it as a ground of annulment. That being so, to apply the law of the domicile will ensure consistency with the treatment of all grounds of invalidity. It will also confirm the view that these personal defects go to the essential validity of a marriage and that all aspects of essential validity are to be governed by the law of the domicile.427 Finally, it is hard to disagree with Lord Reid when he pointed out that application of the law of the forum is wrong in principle, saying: “Suppose a case where the law of the parties’ domicile gives no relief on this ground [ie wilful refusal],428 it seems to me quite contrary to principle that the wife should be able to come here and seek relief on that ground.”429
Returning to the authorities, the most persuasive decision in favour of the application of the law of the domicile is Ponticelli v Ponticelli,430 where the facts were these:
The parties married by proxy in Italy. The wife was domiciled in Italy and the husband was domiciled in England. When the husband petitioned for a nullity decree on the ground of wilful refusal, the court had to face the choice of law issue, for wilful refusal was not in the circumstances a ground for annulment in Italian law.
Sachs J rejected a classification of wilful refusal as akin to an issue of form and so he rejected the law of the place of celebration, here Italian law, as the appropriate law.431 He did not favour the analogy of wilful refusal with divorce, and so his arguments militated against the application of the law of the forum.432 Although he applied English law, he did so rather because it was the law of the husband’s domicile433 at the time of the marriage and of the petition,434 and it was also the law of the intended matrimonial home. Furthermore, he rejected any attempt to distinguish between the choice of law rules for wilful refusal and for impotence. He considered they should both be regarded as matters of personal capacity,435 to be governed by the law of the domicile, for “it is surely a matter of some importance that the initial validity of a marriage should, in relation to all matters except form and ceremony . . . be consistently decided according to the law of one country alone . . . and that consistency cannot be attained if the test is lex fori”.436
Agreeing that physical personal defects are to be governed by the law of the domicile does not, however, solve all problems in this area. It remains to decide which spouse’s domiciliary law is to be applied and whether the domicile, and thus the applicable law, is to be determined at the date of the marriage or at the date of the nullity petition. Although in Ponticelli reference was made to the law of the husband’s domicile, there seems little doubt that, since a married woman is now capable of acquiring a separate domicile, reference must be made to her domicile where appropriate. Various ways have been suggested to decide which domiciliary law should be applied. One approach is to look at the law of each spouse’s domicile and to annul the marriage if there are grounds for so doing under either law.437 This tips the scales firmly in (p. 996) favour of annulling a marriage, with the result that the petitioner would succeed even though there were no grounds for annulment under the law of the domicile and even though he was the person alleged to lack capacity. The balance can be redressed by always applying the law of the petitioner’s domicile.438 Under this approach, however, a nullity decree will be denied in, say, a case of wilful refusal if that does not constitute a ground of annulment under the law of the petitioner’s domicile even though it is a ground under that of the respondent, the respondent being the person who has refused. A third approach, which avoids this difficulty, is to apply the law of the domicile of the spouse who is alleged to be incapable, taking that in the case of non-consummation to be the spouse who is unable, or refuses, to consummate the marriage. In its turn, this approach would deny annulment in the case where wilful refusal was a ground for nullity under the law of the petitioner’s, but not the respondent’s domicile, assuming the refusal to be by the respondent.
No answer is perfect; but it is suggested that the third approach is the most appropriate in that it accords with the general choice of law rule relating to matters of essential validity, ie the application of the ground of invalidity under the domiciliary law of the person alleged to be incapable. This would still leave it open to a court to conclude that, in the special circumstances of non-consummation, it would be right to apply the law of the person who is rendered unable to consummate the marriage by reason of the conduct of the other party.
Finally, there is the question of the time at which the law of the domicile is to be determined. The general rule applicable to matters of essential validity is that the applicable law is that of the domicile immediately preceding the marriage—the ante-nuptial domicile.439 There should be no doubt that this is the relevant time in all cases of alleged invalidity except wilful refusal.440 The more doubtful case is that of wilful refusal. If it is also to be regarded as a straightforward issue of capacity, then the relevant time is again that of the marriage.441 If, however, it is regarded more properly as an anomalous ground of nullity more like a basis for divorce, since it is post-nuptial, then the relevant date for determining domicile might be thought to be that of the proceedings.442 However, the Law Commission would seem to be right in indicating that, if domicile is to be the test for determining the governing law in all issues of essential validity, consistency requires the domicile to be determined at the same time in all cases, ie immediately before the marriage, especially as wilful refusal and impotence are often pleaded in the alternative.443
(e) Annulment on grounds unknown to English law
There is a further issue, closely connected with the question whether English law as the law of the forum should be applied to cases of impotence and wilful refusal. This is whether the English courts will annul a marriage on grounds unknown to English law. There is clear statutory provision for the application of foreign law to any question affecting the validity of a marriage. Section 14(1) of the Matrimonial Causes Act 1973 qualifies the grounds of annulment of void and voidable marriages laid down by that Act444 by stating that, where References(p. 997) any matter affecting the validity of a marriage would, in accordance with the rules of private international law, fall to be determined by a foreign law, nothing in the nullity provisions of the 1973 Act should preclude the application of the foreign law or require the application of the English law of nullity.445
There is no doubt that this provision contemplates that English courts will apply foreign law to nullity petitions in appropriate circumstances and, equally, there is no doubt that English courts will annul marriages on the basis of foreign rules as to invalidity. As has been seen when considering the validity of a marriage,446 the English courts will annul a marriage celebrated in a foreign country if the formalities of the law of the place of celebration are not complied with, irrespective of the English law on such matters.447 Similarly, the English courts will annul a marriage, even if celebrated in England, on a ground laid down by the parties’ ante-nuptial domiciliary laws, whether or not that ground is co-extensive with a similar English ground. For instance, a marriage has been treated as void because the parties were within the prohibited degrees of relationship under their foreign domiciliary law, though not under English law.448
There appears to be no authority on whether an English court will annul a marriage on a ground which, under the law of the domicile, renders the marriage voidable but which falls quite outside the grounds on which a marriage might be declared voidable under English domestic law. Any determination of the question whether English courts would annul a marriage in such circumstances is speculative.449 It is suggested, however, that an English court should be prepared fully to accept the general principle that questions as to the essential validity of the marriage are to be referred to the law of the domicile. In that event, it is submitted that it does not matter whether the English court applies foreign grounds verbally similar to English grounds, such as consanguinity or non-age, even though the substance of the rule is different. Similarly, it should make no difference if a foreign ground is applied which is a variant of the English ground, such as declaring a marriage voidable on the ground that at the time of the marriage another woman was pregnant by the husband,450 or a foreign ground substantially different from any under English law, such as the incapacity of a person of one religion to marry a member of another451 or annulment on the ground of a mistake as to the attributes of the other spouse.452 It must not be forgotten that the English courts would always retain the power, as in the case of other issues of validity,453 to refuse to apply a foreign provision laying down a rule of invalidity where the application of that rule would be contrary to English public policy.454
References(p. 998) (f) What law determines whether a marriage is void or voidable?
It has been suggested455 that, as the annulment of a voidable marriage and a divorce decree both only have prospective effect, the law of the forum should be applied to the former as to the latter. This would have the disadvantage of requiring the choice of law rule to depend on whether the marriage was void or voidable, and of deciding by what law that issue is to be determined—a difficult problem to which we must now turn.
It has been seen that different legal systems attribute different effects to invalidating factors. A clear example is provided by lack of consent, which renders a marriage void under Scots law456 but voidable under English law.457 This poses a problem. If an English court annuls the marriage of parties both domiciled in Scotland, applying the Scottish law on consent, is the marriage to be regarded in England as void or merely as voidable? In other words, is the English court to apply its own criteria for determining whether the problem is one of alleged voidness or of alleged voidability? The previous edition of this book458 advocated the view that whether a marriage was void or voidable was merely a facet of the question whether it was valid or invalid. It followed that the proper law, whether it was the law of the place of celebration or the law of the parties’ domiciles, also determined what was meant by invalidity, ie whether it meant voidness or voidability. It was suggested that any other approach would be highly unsatisfactory where the marriage was void under the governing law, but entirely valid under the law of the forum. Indeed, “to give the marriage full effect under the law of the forum notwithstanding its invalidity under the governing law would be to deprive the choice of law rule of any real impact”.459
Recent developments, however, appear to justify a shift from the originally advocated approach towards the opposite proposition, i.e. that once English law as the law of the forum has classified the type of defect as one of formalities (governed by the law of the place of celebration) or as a personal defect (governed by the law of the domicile), the effect of the defect on the validity of the marriage should be determined by the law of the forum.460 This departure is warranted in particular by the emergence of the concept of “non-marriage” in English law, and by the recognition of the fact that there may be situations where the classification employed by the proper law differs significantly from the terminology used in English law. Thus, for example, the governing law may not recognise terms such as “void” or “voidable” but simply characterise a marriage as “invalid” or “non-existent”, with the meaning of these words corresponding variably to a “void” marriage, “voidable” marriage or even a “non-marriage” in English law terms.461 The point is well illustrated by the decisions in Burns v Burns462 and Asaad v Kurter.463 Both cases concerned the formal validity of marriage. In Burns v Burns, a “marriage” ceremony took place in a hot air balloon in California. As a result of the failure to comply with the formal requirements of Californian law, the marriage was regarded as “invalid” under the law of the place of celebration. Such a marriage might give References(p. 999) rise to remedies under the concept of “putative marriage”; however, it was clear that the marriage was neither void nor voidable, both of which were specifically defined in Californian law. It was argued that, as the law of the place of celebration did not categorise the marriage as void or voidable, the English court could not grant a decree of nullity. Coleridge J, however, rejected this argument and held that “once the foreign law had determined whether it is or is not a valid marriage, it is for the lex fori to decide its implications and what remedies are available to the petitioning spouse”.464 He then awarded a decree of nullity, making it clear that the English court was not precluded from granting a decree of nullity solely on the ground that the governing law did not categorise the marriage as void under its own terminology. This approach was approved and refined by Moylan J in Asaad v Kurter. Here the marriage celebrated in Syria had failed to comply with the formal requirements of Syrian law. As a result, it was not a valid marriage under the law of the place of celebration; which, however, had no separate concepts of a marriage being void, voidable or a non-marriage. In these circumstances, was the English court to categorise the marriage as a void marriage or a non-marriage? To answer this question, Moylan J proposed the following test: “(a) whether the defect makes the marriage valid or invalid is a matter to be determined by the applicable law, being in the case of the formalities of marriage the law of the place where the marriage was celebrated; (b) the English court must determine the effect of the foreign law by reference to English law concepts; if the applicable foreign law determines the effect of the defect by reference to concepts which clearly (or sufficiently) equate to the same concepts in English law then the English court is likely to apply those concepts; if the foreign law does not, then it is for the English court to decide which English law concept applies; and (c) in any event, it is for the English court to decide what remedy under English law, if any, is available.”465 In applying the above test to the facts of the present case, Moylan J concluded that the ceremony in Syria had not been “so deficient” that it could be characterised in English law terms as a non-marriage. Instead, it amounted to a void a marriage in English law terms and, as such, entitled the petitioner to a decree of nullity.
The test suggested by Moylan J can be seen as a compromise between the approach originally advocated in this book and the view that it is for English law as the law of the forum and not for the foreign governing law to determine the effect of the defect on the validity of the marriage. It is a very sensible approach. Indeed, it appears entirely appropriate to employ a functional method in determining the effect of the defect on the validity of the marriage. Where the applicable law uses the same or sufficiently similar concepts and ascribes them the same meaning as English law, the English court is presumed to apply those concepts. In such circumstances, characterisation by the law of the forum will lead to the same result as characterisation by the foreign governing law, and, from the practical perspective, it is not strictly necessary to establish which approach is being followed. However, in all other situations, including those where an identical expression has a different meaning in English law terms, the English court ought to apply English law to determine which concept is applicable.
(g) The law to govern the effect of a nullity decree466
The effect of any decree of nullity is a matter for the law of the forum which granted it.467 So, if an English court grants a decree annulling a marriage, it is for English law, as the law of the forum governing procedure, to determine the effect of its own decree. That being so, the law of the domicile or of the place of celebration, depending on the type of defect in question, (p. 1000) will decide whether the marriage is void or voidable, but English law will decide whether, in the light of that classification, the decree should have retrospective effect.
Until 1972, recognition of foreign divorces and legal separations was governed by common law rules. These rules were substantially, but not wholly, replaced by statutory grounds of recognition in the Recognition of Divorces and Legal Separations Act 1971, which was passed to implement the Convention on the Recognition of Divorces and Legal Separations adopted in 1970 by the Hague Conference on Private International Law. There had previously been criticism of the common law rules, and the implementation of the Convention in the 1971 Act provided an opportunity to introduce reforms rather broader in scope than the Convention required. However, the 1971 Act did not extend to the recognition of foreign annulments, which continued to be governed by common law recognition rules. The uncertainty of those rules and the fact that different regimes applied to divorce and nullity recognition was a source of criticism469 which led the Law Commission, in 1984, to examine the varied rules for the recognition of divorces, annulments and legal separations and to propose that essentially the same statutory rules should apply in the case of all three matrimonial causes, and that those rules should be based on the Recognition of Divorces and Legal Separations Act 1971, subject to a number of amendments.470 These recommendations were substantially carried into effect by Part II of the Family Law Act 1986.471
The general effect of the statutory rules in the 1986 Act is that, subject to a few minor exceptions mentioned later,472 the same recognition rules apply to all three matrimonial causes. Furthermore, the common law rules of nullity recognition,473 and those common law rules relating to the recognition of divorces and legal separations which survived the 1971 Act,474 were replaced by the statutory regime of the 1986 Act, irrespective of where the divorce, annulment or legal separation was obtained and of whether it was obtained before or after the 1986 Act came into force.475
Different rules were provided in the 1986 Act for the recognition of divorces, annulments and judicial separations granted in other jurisdictions within the British Isles476 and of divorces, annulments and legal separations477 obtained in politically foreign countries. The 1986 Act governed the recognition of all overseas divorces, annulments and legal separations until 1 March 2001, when, as has been explained above,478 the Brussels II Regulation took References(p. 1001) effect. With effect from 1 March 2005, account has had to be taken of the Brussels II bis Regulation.479 Now, the rules for recognition of divorces, annulments and legal separations differ according to the identity of the state (the court of origin) in which the decree or judgment was issued: (i) a court elsewhere in the British Isles; (ii) a court or other authority in another EU Member State, except Denmark; or (iii) a court or other authority in a non-EU Member State, or in Denmark. These three situations must be considered separately.
(ii) Divorces, annulments and judicial separations granted elsewhere in the British Isles
Any decree of divorce, nullity, or judicial separation granted by a court of civil jurisdiction480 in any part of the British Isles must be recognised in any part of the United Kingdom,481 irrespective of when it was granted.482 So, the English courts must483 recognise any divorce, etc granted elsewhere in the British Isles and, similarly, such divorces, etc must be recognised in Scotland and Northern Ireland.484
Although such divorces, etc cannot be denied recognition on jurisdictional grounds,485 two qualifications to recognition are provided. First, an English court can refuse recognition to a divorce or a judicial separation granted elsewhere in the British Isles at a time when there was no subsisting marriage between the parties, according to English law, including English rules of private international law.486 This would cover such situations as where a marriage in England was invalid under English domestic law or a marriage abroad failed to satisfy English rules of private international law. In such circumstances, the English court has a discretion487 to refuse recognition to, say, a Scottish divorce decree dissolving that marriage. It may be noted that this provision does not apply to recognition of nullity decrees for which, given the invalidity of the marriage, it might be thought inappropriate. However, the second qualification does extend to other British nullity decrees, as well as to divorces and judicial References(p. 1002) separations.488 It gives the English court a discretion to deny recognition on a res judicata basis, ie if the other British decree was granted at a time when it was irreconcilable with a decision on the validity of the marriage previously given either by an English court or given elsewhere and entitled to be recognised in England. So a Scottish decree annulling or dissolving an English marriage can be denied recognition if there is already an English decree, or a South African decree recognised in England, to similar effect. In the case of a divorce or judicial separation, if there is a previous decision ending the marriage, the court’s discretion can be exercised under either of the two heads just mentioned.489
Because of the mandatory wording of section 44(2) of the Family Law Act 1986, which states that divorce, etc decrees granted by a court of civil jurisdiction elsewhere in the British Isles shall be recognised in England, such other British decisions cannot be denied recognition in England even though they may contravene the rules of natural justice or be manifestly contrary to English public policy.490 The justification for this is that it was “thought that in such circumstances the complaining party should seek to have the decree set aside by the court which granted it,491 or an appeal from that court, and that it would be objectionable to allow a court in another part of the British Isles492 to refuse to recognise the decree”.493 However, an English court is not required under Part II of the 1986 Act to recognise any findings of fault or any maintenance, custody or other ancillary order made in the other British proceedings.494
(iii) Divorces, annulments and legal separations obtained in another EU Member State, except Denmark
As has been stated previously in this book, the principle of mutual recognition of judgments has been fixed as the cornerstone for the creation of a European judicial area.495 Alongside the objective of the free movement of judgments within the Member States in civil and commercial matters, the EU has set the objective of creating an area of freedom, security and justice, in which the free movement of persons is ensured. “To this end, the Community is to adopt, among others, measures in the field of judicial co-operation in civil matters that are necessary for the proper functioning of the internal market.”496
Article 1 (scope) of the Brussels II bis Regulation provides that, “1. This Regulation shall apply, whatever the nature of the court or tribunal, in civil matters relating to: (a) divorce, legal separation or marriage annulment.”497 It is interesting to compare this wording with that in Recital (9) of Brussels II, ie: “The scope of this Regulation should cover civil proceedings and non-judicial proceedings in matrimonial matters in certain States, and exclude purely religious procedures. It should therefore be provided that the reference to ‘courts’ References(p. 1003) includes all the authorities, judicial or otherwise, with jurisdiction in matrimonial matters.”498 According to the Explanatory Report on the Brussels II Convention, the term “civil” was to be understood not only as a means of including administrative (ie non-judicial) proceedings, but also as a means of excluding all merely religious proceedings.499 The Report expressly states that: “The Convention excludes from its scope religious proceedings, which may become more frequent as a result of immigration (Muslim and Hindu marriages, for instance).”500 Therefore, Brussels II bis, in covering civil matters, should be construed as applying to judicial or non-judicial (ie administrative) proceedings, but not to religious proceedings. All religious divorces, regardless of the country in which they are obtained, should be treated as falling under the scheme of recognition in Part II of the Family Law Act 1986.501
(b) General principle of recognition
It is stated in Brussels II bis that: “The recognition and enforcement of judgments given in a Member State should be based on the principle of mutual trust and the grounds for non-recognition should be kept to the minimum necessary.”502 Accordingly, Article 21 of the Regulation503 states that;
1. A judgment504 given in a Member State shall be recognised in the other Member States without any special procedure being required.
2. In particular, and without prejudice to paragraph 3, no special procedure shall be required for updating the civil-status records of a Member State on the basis of a judgment relating to divorce, legal separation or marriage annulment given in another Member State, and against which no further appeal lies under the law of that Member State.505
3. Without prejudice to Section 4506 of this Chapter, any interested party507 may, in accordance with the procedures provided for in Section 2508 of this Chapter, apply for a decision that the judgment be or not be recognised . . .
4. When the recognition of a judgment is raised as an incidental question in a court of a Member State, that court may determine that issue.
References(p. 1004) (c) Grounds of non-recognition
Article 22509 provides that a judgment relating to a divorce, legal separation or marriage annulment shall not be recognised:
(a) if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought;510
(b) where it was given in default of appearance, if the respondent was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable the respondent to arrange for his or her defence511 unless it is determined that the respondent has accepted the judgment unequivocally;512
(d) if it is irreconcilable with an earlier judgment given in another Member State515 or in a non-Member State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.516
These grounds for non-recognition are very similar to those contained in Article 45(1)(a)-(d) of the Brussels I (Recast) Regulation.517
Perhaps the most controversial of the Article 22 defences is that of public policy.518 As with the Brussels I (Recast) Regulation, the wording of Article 22(a) strongly suggests that the recognising court is to apply its own concept of public policy when considering this defence. National courts have a degree of latitude in determining the meaning of the concept, but it is to be expected that they will give it an interpretation which is appropriate in the context and spirit of the Regulation. The public policy defence should be used only sparingly, in exceptional cases, as is underscored by use of the word “manifestly”.519 It is recognition of the judgment, rather than the judgment itself, which must be contrary to public policy.
One possible challenge to recognition under Article 22(a) is in relation to the divorce, legal separation or annulment of a same sex marriage.520 Neither “marriage” nor “divorce” is defined in Brussels II bis,521 however, there is nothing in the Regulation to suggest that it applies to References(p. 1005) the divorce, etc of a marriage of a same sex couple. Academic opinion on this issue appears to be divided, with some authors suggesting that same sex marriage is covered by Brussels II bis,522 whilst others arguing that it is not.523 Were the former view to be correct, it would be unclear to what extent the courts of the Member States that do not formally recognize same sex relationships would have discretion to refuse recognition under Article 22 (bearing in mind the terms of Articles 24 and 25, discussed below). Although there is clearly potential for a reference to be made to the CJEU for a preliminary ruling on this point of interpretation, the English legislator seems to have taken a clear view on the matter, namely, that the divorce, etc of a same sex relationship does not fall within the scope of Brussels II bis.524
(d) Prohibition of review of jurisdiction of the court of origin
Article 24 of Brussels II bis narrates the important principle that: “The jurisdiction of the court of the Member State of origin may not be reviewed.525 The test of public policy referred to in [Article 22(a)] may not be applied to the rules relating to jurisdiction set out in Articles [3 to 7].” It cannot be argued that the court of origin misapplied the jurisdictional rules in Brussels II bis, or its national rules of residual jurisdiction. In particular, this prohibition cannot be evaded by using the public policy defence.
(e) Differences in applicable law
By virtue of Article 25: “The recognition of a judgment may not be refused because the law526 of the Member State in which recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts.” This provision is the counterbalance to Article 22(a), and is:
designed to meet the concerns of States with more tolerant internal provisions on divorce who fear that the judgments given by their courts might not be recognised in another State because they are based on grounds unknown in the legislation of the State in which recognition is sought. The provision therefore limits indiscriminate use of public policy.527
(f) Non-review as to substance
Article 26 lays down the classic rule that under no circumstances may a judgment be reviewed as to its substance.528 This buttresses the principle stated in Article 25, to the effect that recognition cannot be refused solely on the ground that there is a discrepancy between the legal rules applied, respectively, by the court of origin and by the recognising court. It cannot be alleged that the court of origin made a mistake of fact or of law. Procedural irregularities in the court of origin, however, can be examined in order to establish a defence under Article 22.
(iv) Divorces, annulments and legal separations obtained in a non-EU Member State, or in Denmark
Part II of the Family Law Act 1986 deals with a range of matters relating to the recognition in England of divorces, annulments and legal separations which have been obtained in a References(p. 1006) country529 outside the British Isles, other than those in respect of which provision as to recognition is made by Brussels II bis. Essentially, Part II applies to divorces, etc obtained in a state which is not an EU Member State, or in Denmark; these are referred to in the 1986 Act as “overseas divorces”, etc,530 and references in this section of the chapter to “overseas divorces” or “foreign divorces” should be construed in like manner. No distinction is drawn in the 1986 Act, as there was in the 1971 Act,531 between different kinds of foreign divorce, etc dependent on whether their recognition fell within or outside the Hague Convention of 1970. The consequence, as recommended by the Law Commission,532 is a less complex set of recognition rules, especially in relation to issues of jurisdiction.533 The areas to be examined here include the jurisdictional bases for recognition, the requirement of effectiveness of the divorce, etc in the country where it was obtained, the grounds on which recognition may be denied and the special problems and rules relating to different kinds of extra-judicial divorce.
(b) General matters
The recognition rules laid down in Part II are exclusive.534 It is not possible for the recognition of a foreign divorce, annulment or legal separation to be governed by common law recognition rules, whether or not it was obtained535 before or after the 1986 Act came into effect.536 As a result, the extension of the statutory regime for recognition to foreign annulments has the effect that it is now clear that an annulment of a void marriage will not be recognised on the basis that it was obtained in the country where the marriage was celebrated.537 Furthermore, the general rule is that recognition is mandatory,538 provided that the requirements of Part II (as to jurisdiction, etc) are satisfied and that one of the statutory grounds for denying recognition539 is not relevant.
(c) Jurisdictional rules
Section 46(1) of the 1986 Act provides a number of jurisdictional grounds for the recognition of overseas divorces, annulments and legal separations which have been obtained by judicial or other proceedings.540
An overseas divorce, etc will be recognised if either party, whether petitioner or respondent, to the marriage was domiciled in the country where it was obtained541 at the date of the commencement of the foreign proceedings.542 In the case of the recognition of foreign divorces and legal separations, this involves a very slight limitation on the recognition rules available under the 1971 Act where it was possible for a divorce, etc to be recognised in England if its validity was recognised in the country of each spouse’s domicile, though obtained in References(p. 1007) neither.543 The Law Commission544 concluded that there was no case for the retention of such an extended rule relating to domicile, given that there is no equivalent rule in relation to the other jurisdictional heads of habitual residence and nationality,545 and that the old rule was inequitable if one of the spouses was domiciled in England and the other abroad. In such a case the divorce, etc would only be recognised if recognised in England, which was the very matter in issue; so recognition would have to be refused.546 There is, therefore, no counterpart of such an extended domiciliary rule in the 1986 Act547 where there are foreign proceedings.548
It has been assumed so far, as is usual in private international law, that domicile means domicile in the English sense. However, section 46(1)(b) requires an overseas divorce, etc to be recognised if either party is domiciled in the foreign country in either the English or the foreign sense of domicile,549 this latter being a ground of jurisdiction provided in the 1970 Hague Convention and in the 1971 Act. Hence an overseas divorce may have to be recognised on the basis of such foreign concept of domicile,550 even though neither spouse was domiciled in the foreign country in the English sense of the term.551
It is possible that a country may have different concepts of domicile for different purposes;552 and so section 46(5) of the 1986 Act makes clear that the concept of domicile relevant for recognition purposes is that used in the foreign country “in family matters”.553
(ii) Habitual residence
An overseas divorce will be recognised if it was obtained in a country in which, at the time of the commencement of the proceedings,554 either spouse was habitually resident as determined under English law.555 No length of period of residence is specified or required;556 and jurisdiction may be founded on the habitual residence of either spouse, whether petitioner or respondent.
References(p. 1008) (iii) Nationality
A similar rule applies in the case of nationality, so that divorces, etc obtained in a country of which, at the time of the proceedings,557 either party was a national will be recognised in England.558 No definition of nationality is provided,559 but there seems little doubt that, in the case of a person with dual nationality, recognition will be given to divorces, etc obtained in either country of the nationality.560
(d) The time at which the jurisdictional rules must be satisfied
As we have seen, the general rule is that the jurisdictional connection must be satisfied at the date of the commencement of the foreign proceedings by which the divorce, etc was obtained.561 There are, however, two exceptions to this. The first is relevant only to the recognition of foreign annulments. It is possible both in England, and elsewhere, for an annulment of a void marriage to be obtained by a person other than a spouse and for that to be done after the death of either or both spouses. English jurisdictional rules make special provision for such a case,562 as does section 46(4) of the 1986 Act in the case of recognition of an overseas annulment. If the annulment was obtained after the death of a party to the marriage, the jurisdictional requirements of domicile, habitual residence or nationality are satisfied if the appropriate connection existed at the date of the death.563
The second exception concerns cross-proceedings, where it is sufficient if the jurisdictional grounds of habitual residence, nationality and domicile in the English or the foreign sense existed either at the date of the original proceedings or of the cross-proceedings.564 This applies irrespective of which proceedings led to the foreign divorce, etc. Of course, even if this special jurisdictional provision is satisfied, it is necessary to satisfy all the other requirements of Part II of the 1986 Act for the divorce, etc to be recognised.565
Not only must one of the various jurisdictional requirements be satisfied at the relevant time, but it is also necessary that the overseas divorce, etc be “effective under the law of the country in which it was obtained”.566 This requirement of effectiveness was also to be found in the 1971 Act567 but did not there extend to recognition on the jurisdictional basis of domicile in the English sense. Following the recommendations of the Law Commission,568 this requirement applies, under the 1986 Act, also to the domicile basis569 and is extended, as is the whole of Part II of the 1986 Act, to the recognition of overseas annulments. This marks a change from the common law rules as to nullity recognition where, for example, a German References(p. 1009) decree was recognised in England even though it was regarded in Germany as invalid and of no effect there.570
Various examples of legal ineffectiveness might be provided, as, for instance, where a foreign divorce does not, in the foreign country, dissolve a marriage until a specified period has elapsed,571 or whilst an appeal is pending,572 or until a decree absolute is pronounced.573 It is also possible574 that, under the law of the foreign country, the divorce, etc might be regarded as ineffective there because that country’s rules as to service on the parties or as to the jurisdiction of its courts had not been satisfied, even though the jurisdictional requirements of the 1986 Act575 had been. This might be so even if the procedural defects did not fall within the heads listed in the 1986 Act576 as grounds for denying recognition.577
(f) Meaning of “country”
So far, in examining the jurisdictional and other rules of Part II of the 1986 Act, it has been assumed that the requirement of a connection with the “country” in which the divorce, etc was obtained causes no difficulty.578 There are, however, political countries which comprise different territories579 and those territories may have different substantive or jurisdictional rules for obtaining divorces, etc. There were problems with the 1971 Act in deciding whether some or all of the references in that Act to “country” meant the political state or the individual territory.580 In order to try to resolve these difficulties, section 49 of the 1986 Act581 provides express modifications of the provisions of Part II of that Act in those cases where, in a country comprising different territories, there are different systems of law in force in relation to divorce, annulment or legal separation.582 The general approach is to say that, in such cases, any requirement of domicile (in the English or foreign senses) or habitual residence in a country, and indeed effectiveness under the law of that country, means domicile or habitual residence in an individual territory.583 This means that, as each American state has its own divorce, etc laws, New York or California is to be treated as a separate country for the purposes of determining domicile or habitual residence. On the other hand, Canada References(p. 1010) and Australia, both also federal states, have federal divorce laws;584 so one must ask whether in divorce proceedings a spouse was habitually resident or domiciled in Canada or Australia, rather than in an individual province or state.
Nationality as a connecting factor poses rather different problems. Federal and other non-unitary states do not have different nationality rules, depending on a person’s connection with a particular territory within the state. This would suggest that a connection with a territory is satisfied for jurisdictional purposes if either party is a national of the political state as a whole. This means that if a divorce, etc is obtained in New York, it will be recognised in England even though the only relevant connection for the purposes of the 1986 Act is that one spouse is a US citizen.585 The provisions which state that connection by domicile or habitual residence with a territory will suffice586 do not extend to connection by nationality.
It is necessary in the case of connection by nationality, as in other cases, not only that the divorce, etc was obtained in the country of the nationality but also that it was effective “under the law of the country in which it was obtained”.587 This raises the issue as to the meaning of “country” in this latter context. If, for instance, a divorce is obtained in California by an American citizen, and the only jurisdictional test which is satisfied is that of nationality, does the divorce have to be effective in California or throughout the USA? The 1971 Act was unclear on this question and academic views differed as to the answer; but section 49(3)(a) of the 1986 Act now makes it clear that, in such a case, effectiveness “throughout the country in which [the divorce] was obtained” is necessary.588 So, in the example just given, the Californian divorce will only be recognised in England if it is recognised throughout the USA. Indeed, it has been thought to be “absurd” to recognise a divorce obtained in one American state which would not be recognised elsewhere in the USA.589
(g) Two procedural issues
(i) Conversion of legal separation into divorce
Some jurisdictions permit a legal separation automatically to be converted into a divorce at the end of a prescribed period. If the legal separation would be recognised on the jurisdictional grounds590 of habitual residence, nationality, or domicile in the English or the foreign sense, then the later divorce will be recognised even though the jurisdictional criteria cannot be satisfied at that later date.591 The conversion must, however, be in the country where the legal separation was obtained and the new divorce must be effective under the law of that country.
(ii) Findings of fact
If any finding of fact on the basis of which jurisdiction was assumed, such as to the domicile in the foreign sense,592 habitual residence,593 or nationality594 of the parties,595 is made in References(p. 1011) the foreign divorce, etc proceedings, it shall be conclusive evidence of the fact found if both spouses took part in the proceedings.596 In any other case, eg an ex parte divorce, it shall be sufficient proof of that fact unless it is challenged and the contrary is shown.597
As foreign matrimonial proceedings may differ markedly from English ones, it is necessary for the English court to decide whether the foreign proceedings come within one of the categories of divorce, annulment598 or legal separation within the meaning of Part II of the 1986 Act. It has been held, for example, that the termination of a marriage by the husband’s unilateral decision to change his religion and become a Moslem, which was evidenced by a declaration before witnesses in Malaysia, could not be regarded here as either a divorce or an annulment.599 In the case of legal separations, it should be noted that, although the rules for the recognition of other British decrees refer to decrees of “judicial separation”,600 those for recognition of separations obtained outside the British Isles refer to “legal separations”.601 A legal separation is not defined in the 1986 Act, nor indeed in the 1970 Hague Convention on which the Act is based. It must be assumed that the Act extends to all foreign decrees or orders which are similar in character to an English decree of judicial separation and, indeed, to any order or decree made by a foreign court which has the effect that the parties are no longer obliged to live together, but not the effect of dissolving the marriage. The consequence of the use of different terminology is that, for example, a non-cohabitation order made in Northern Ireland will not be recognised in England because it is not a decree of judicial separation.602 On the other hand, had it been made outside the British Isles, it is likely to be recognised as a legal separation.603
(i) Irrelevance of the foreign jurisdictional rules or of the grounds for granting the divorce, etc
It should be pointed out that, as was the case at common law,604 the grounds on which the foreign divorce, etc were obtained are irrelevant to the question of recognition.605 It is immaterial that the divorce, etc was obtained on a ground unknown to English law. This is illustrated clearly by the fact that, at common law, a foreign nullity decree has been recognised References(p. 1012) as annulling a marriage, validly celebrated in England, on the ground of what English courts would class as formal invalidity.606 A corollary of this is that a foreign divorce or annulment will be recognised though granted on grounds unknown to English law,607 even where one spouse was domiciled in England.608
Furthermore, again as at common law, the jurisdictional basis assumed by a foreign court is similarly irrelevant. The English court is concerned only with the factual jurisdictional circumstances in the foreign country when the divorce, etc was obtained.
Section 45(1)(b) of the 1986 Act preserves the rules for the recognition of overseas divorces, annulments and legal separations which exist by virtue of any other enactment. However, at the same time, the 1986 Act repeals609 as spent legislation most, if not all, of the other statutory provisions610 under which overseas divorces, etc might be recognised, whilst also preserving the validity of past divorces, etc which would be recognised under that spent legislation, and might not be recognised under the 1986 Act.611 Furthermore, it has been made clear612 that an overseas divorce, etc not recognised under the 1986 Act cannot be recognised under the Foreign Judgments (Reciprocal Enforcement) Act 1933.613
(v) Extra-judicial divorces, annulments and legal separations614
Divorces may be obtained not only in judicial proceedings but also extra-judicially in a variety of ways. These include divorce by mutual consent,615 by administrative process616 or, more commonly, under religious laws.617 For instance, a Jewish Rabbinical law allows a husband to dissolve his marriage by delivering to his wife a letter of divorce, called a gett and, though this necessitates his appearance before a Rabbinical court, the proceeding is a formality and is not accompanied by a judicial finding and pronouncement.618 Under Moslem law,619 a husband is permitted to divorce his wife without any reference to a court. Such a divorce, by References(p. 1013) talak, merely requires him to state unequivocally three times his intention to repudiate the marriage. In some countries, no further formality is required than this—what is often called a “bare” talak.620 In other jurisdictions where Moslem law is applied, it is necessary also either to register such a divorce with a court or administrative body621 or, as under the Pakistan Muslim Family Laws Ordinance 1961,622 to go through procedures giving the opportunity of conciliation proceedings.623 Moslem law also provides other forms of divorce, such as by khula, a form of divorce by agreement on the suggestion of the wife.624
Examples of extra-judicial annulments are very much less easy to provide,625 not least because few countries recognise religious or administrative annulment of marriage. However, examples can be provided of annulment by an ecclesiastical rather than civil tribunal.626
At common law, English courts were originally very reluctant to recognise the effectiveness and validity of extra-judicial divorces;627 but attitudes have changed and it has come to be accepted that they should normally be recognised if the general jurisdictional criteria for recognition have been established.628 Indeed, in 1970 recognition was given to a talak divorce pronounced in England, dissolving the marriage celebrated in England of spouses domiciled in Pakistan.629
The rules for the recognition of foreign extra-judicial divorces and legal separations were placed by the Recognition of Divorces and Legal Separations Act 1971 on the same general statutory basis as the rules for the recognition of foreign divorces and legal separations obtained by court order; though the grounds for recognising extra-judicial divorces and legal separations obtained without there having been any proceedings (such as a bare talak) were narrower630 than for those which involved some form of proceedings as in the case of a gett.631 There were also special rules generally denying recognition to extra-judicial divorces and separations obtained in the British Isles but recognised as valid elsewhere.632 This pattern has substantially been retained in Part II of the Family Law Act 1986, with the addition that the recognition rules now extend to the recognition of extrajudicial annulments.633 The Law Commission634 had proposed a more liberal approach635 so that, for References(p. 1014) example, “bare” talaks would fall within the broader recognition rules applicable where there had been some proceedings. On the other hand, they also proposed that the requirement of some form of proceedings, albeit more liberally interpreted,636 should apply to all divorces, etc irrespective of the jurisdictional basis of recognition. This would have had the effect that an entirely informal divorce could no longer be generally recognised637 even though obtained in the country of the spouses’ common domicile. This essentially more liberal approach was rejected638 for three reasons, namely because of problems of proof in the case of informal divorces, because such divorces tend to discriminate against women (being usually obtained by men) and because they often provide little or no financial protection for the wife and family. These arguments are not wholly convincing. The last is met by the provisions in Part III of the Matrimonial and Family Proceedings Act 1984 allowing the courts to grant financial relief even though a foreign divorce is recognised in England.639 If there is force in the first two arguments they militate against any recognition of such informal divorces, but in fact they continue to be recognised, provided they are obtained or recognised in the country of the domicile in the English sense.640 It is not easy to see why a domicile connection provides any greater protection than one based, say, on habitual residence.641
The result is that, in relation to extra-judicial divorces, etc, Part II of the 1986 Act still follows very much the approach of the 1971 Act. We shall have to consider, therefore, the rules relating to extra-judicial divorces, etc obtained in the British Isles separately from those obtained overseas, and to determine where a divorce, etc is obtained, given that the recognition rules depend on this factor even though, because of the very informality of many of the divorces, etc under consideration, the parties may regard the place where it takes place as totally unimportant. In the context of overseas divorces, etc, it is also necessary to look separately at those obtained by some form of proceedings and, indeed, to consider what constitutes “proceedings”.
Before turning to examine the detail of the 1986 Act, it should be borne in mind that the approach of English law and the attitude of English courts in this regard is one of tolerance, as is clear from the words of Munby J in Sulaiman v Juffali:642
Although historically [England] is part of the Christian west, and although it has an established church which is Christian, I sit as a secular judge serving a multi-cultural community of many faiths in which all of us can now take some pride, sworn to do justice “to all manner of people”. Religion—whatever the particular believer’s faith—is no doubt something to be encouraged but it is not the business of government or of the secular courts. So the starting point of the law is an essentially agnostic view of religious beliefs and a tolerant indulgence to religious and cultural diversity. A secular judge must be wary of straying across the well-recognised divide between church and state. It is not for a judge to weigh one religion against another. All are entitled to equal respect, whether in times of peace or, as at present, amidst the clash of arms.
References(p. 1015) (b) General issues
Before examining the particular rules relating to the recognition of extra-judicial divorces, etc, it is necessary to examine, first, two of those inter-related general issues. As there are different rules for extra-judicial divorces, etc obtained in the British Isles and overseas, and for overseas divorces, etc depending on whether or not they were obtained by “proceedings”, we shall consider here the two questions: where is an extra-judicial divorce, etc obtained and what constitutes proceedings?
(i) Where is an extra-judicial divorce, etc obtained?
This question may be asked in two main contexts. First, it is necessary that an overseas divorce, etc be effective in the country where it was obtained and that one of the relevant jurisdictional links with that country is satisfied.643 The second context, which has proved in practice to be the more important, is to determine whether the divorce, etc was obtained in the British Isles or overseas. The significance of this is that the divorce, etc will normally be denied recognition if obtained in the British Isles.644
It might be thought that the proceedings or act645 by which an extra-judicial divorce, etc is obtained could only occur in one country. Whilst this is usually true, particular difficulty has been caused by Moslem divorces by talak, especially where this religious requirement is also combined with a need for some further type of proceedings. This is illustrated by a decision under the Recognition of Divorces and Legal Separations Act 1971, R v Secretary of State for the Home Department, ex parte Fatima:646
The husband was a Pakistan national who married there in 1968, but had lived in England ever since. In 1978, he purported to divorce his wife by talak and in 1982 wished to marry Ghulam Fatima; but she was refused entry to England by an immigration officer at Heathrow Airport. This was because the officer concluded that the husband’s talak divorce would not be recognised in England and so the husband was not free to marry again here.
The crucial issue with which the House of Lords was faced was to determine where the talak divorce in 1978 was obtained. If it was obtained in Pakistan, where it was effective, it would be recognised in England as a divorce obtained in the country of the nationality.647 If it was obtained in England, it would be denied recognition.648 The circumstances were that it was a “transnational” divorce:649 some proceedings took place in England, others in Pakistan under the Muslim Family Laws Ordinance 1961 in force there. The husband had pronounced the talak in England and made a statutory declaration to that effect to an English solicitor. Copies of this were sent to Pakistan both to the wife and, as required by the Ordinance, to the chairman of the relevant local union council; and it would appear that all the necessary conciliation procedures in Pakistan were complied with. The effect of this was that the divorce became effective there ninety days after receipt of notice of the talak by the chairman. Lord Ackner concluded that the divorce was not obtained by proceedings wholly in Pakistan because the pronouncement of the talak in England was an essential part of the proceedings.650 This led him to the conclusion that the divorce was obtained by proceedings which took place in both countries and that recognition must be denied, because section 2 of the References(p. 1016) 1971 Act required an overseas divorce to be obtained by means of judicial or other proceedings in a country outside the British Isles and to be effective under the law of that country. Similarly, in Sulaiman v Juffali,651 a bare talak pronounced by the husband in England, and registered with the Sharia Court in Saudi Arabia three days later was “obtained” in England for the purposes of the 1986 Act, since its effect was to dissolve the marriage as soon as it had been pronounced; the validity of this talak was in no way dependent upon the participation or authorisation of judicial authorities, and so, having been obtained in England other than through a court of civil jurisdiction, the divorce fell foul of section 44(1).
Such a result is wholly consistent with the policy of denying recognition to extra-judicial divorces, etc which have been obtained by proceedings in England,652 but it does highlight the particular weight which the legislation places on where a divorce, etc is obtained. If the husband in this case had had the advice, or the funds, to go to Pakistan to pronounce the talak, it would have been recognised in England.653
There is a difficult question as to whether the same result is compelled under the 1986 Act which is worded slightly differently. Section 46(1) requires an overseas divorce obtained by proceedings to be effective in the country where it was obtained but does not, in so many words, require the proceedings to be in that country. This led to the suggestion654 that where the proceedings take place in more than one country, as in Ex p Fatima, the divorce may still be recognised if that element of the proceedings which renders the divorce effective takes place in the overseas country with which the necessary jurisdictional links may be established. So, it is argued,655 a talak pronounced in England by a Pakistan national but perfected by proceedings in Pakistan is obtained (and effective) in Pakistan and should be recognised in England.
Whilst there is undoubted force in the argument both from the point of view of policy and on construction of the statutory provisions, it was rejected by Wall J in Berkovits v Grinberg.656 In that case, a gett had been written in England but was delivered in Israel. Although it was effective under the law of Israel to dissolve the marriage, it was denied recognition in England. The judge accepted the argument that there was no evidence that the 1986 Act was intended to change the law and that it should be so construed.657 Furthermore, other provisions of the 1986 Act, like their predecessors in the 1971 Act, are drafted on the basis that the divorce was obtained in the foreign proceedings.658 This is particularly true of those provisions concerned with the giving of notice of the proceedings to the parties.659 It is nonetheless undesirable to say, as was said by Lord Ackner in Ex p Fatima, that there “must be a single set of proceedings which have to be instituted in the same country as that in which the relevant divorce was ultimately obtained”.660 This may References(p. 1017) be too sweeping a statement.661 It is surely understandable to deny recognition to a divorce obtained by proceedings partly in England and partly abroad, given the prohibition on recognition of extra-judicial divorces, etc obtained in the British Isles.662 It is less justifiable to deny recognition to, say, a talak pronounced in Dubai followed by conciliation proceedings in Pakistan, given that the divorce is effective in each of the countries where some of the proceedings took place.
If a divorce, etc is obtained in a consulate or embassy, it is to be taken to be obtained in the country where the consulate or embassy is situated, not in the country of the sending state. So it has been held that an extra-judicial divorce obtained in the Consulate-General of the United Arab Republic in London was obtained in England and was not an overseas divorce.663
(ii) What constitutes proceedings?
The significance of this question is that, where the divorce, etc is obtained by judicial or other proceedings,664 the jurisdictional bases of recognition are much wider than if there are no proceedings665—being limited in the latter case to domicile.666 This is much the same as the position under the 1971 Act667 in which context the courts had to consider the same question. Whilst there is no definition of “judicial or other proceedings” in the 1986 Act,668 it has been suggested669 that the phrase is limited to cases involving some act external to the parties themselves, such as registration, conciliation proceedings or some other form of approval.670 The House of Lords has held in Quazi v Quazi671 that a divorce obtained in Pakistan by talak and which then involved the procedures of the Pakistan Muslim Family Laws Ordinance 1961—namely the giving of notice to the wife and to the chairman of the local union council, with the prospect of conciliation proceedings—had been obtained by means of judicial or other proceedings. On the other hand, after a period of uncertainty, the Court of Appeal672 has concluded that a “bare” talak, ie where there is no more than an oral pronouncement by the husband three times, whether or not before witnesses, that he divorces his wife, does not constitute proceedings.673
It has been suggested by Oliver LJ that proceedings “must impart a degree of formality and at least the involvement of some agency, whether lay or religious, of or recognised by the state References(p. 1018) having a function that is more than simply probative”,674 and would exclude “a private act conducted entirely by parties inter se or by one party alone, as a proceeding, even though the party performing it may give it an additional solemnity or even an efficacy by performing it in the presence of other persons whose only involvement is that they witness the performance”.675 On this approach, it can be concluded that a divorce in Thailand by mutual consent based simply on an agreement signed by the spouses;676 a divorce by consent under Chinese customary law, even if the agreement is presented to, and authenticated by, a local body;677 or a divorce by “divorce letter” in The Gambia678 will not be regarded as having been obtained by proceedings.679 In taking this approach, the Court of Appeal does seem to have rejected the more liberal line of Lord Scarman in Quazi v Quazi.680 He defined “proceedings” as “any act or acts officially recognised as leading to divorce in the country where the divorce was obtained and which itself is recognised by the law of the country as an effective divorce”. On this basis, he was prepared to recognise, as obtained by proceedings, a divorce by khula in Thailand which involved no more than a written agreement witnessed by two persons.681 The problem with Lord Scarman’s approach is that it is so wide that it would include virtually every kind of effective divorce, etc and thus deprive of any content the special rules in Part II of the 1986 Act governing divorces, etc obtained where there are no proceedings.682 Finally, there seems little doubt that, if the termination of a marriage by one spouse’s unilateral declaration of his change of religion could be regarded as a divorce,683 it is certainly not obtained by proceedings.684
In El Fadl v El Fadl,685 Hughes J recognised that the rules applicable to talak procedures differ to some extent from country to country, and that different varieties of talak may coexist within a single country, and so his Lordship viewed it as important to confine himself to the circumstances of the particular case, and to refrain from generalisation.686 With regard to a talak divorce pronounced by a husband (a Lebanese national, habitually resident in the Lebanon), in front of two witnesses, and registered with the Sharia court in the Lebanon, as required by Lebanese law,687 Hughes J, in concluding that the divorce was a “proceedings divorce” was swayed by the requirement of registration:
If . . . this had been a talaq which depended for its effectiveness solely upon the pronouncement in front of witnesses I should have held . . . that it was not a proceedings divorce688 . . . Although the Sharia court has no judicial decision to make whether there is to be divorce or no, what occurred before it with the assembly of the court, judge and clerk, and the duty to record into the register, having taken formal declarations, is properly described References(p. 1019) as “proceedings” and the local law explicitly requires such proceedings as an integral part of the divorce process.689
Similarly, the following circumstances have been found to amount to “proceedings” under s 46(1): the giving notice of the talaq to the relevant chairman of the union council;690 a talaq pronounced under Libyan law and confirmed by an Egyptian judgment to meet the requirement of Libyan law that proof of the talaq to be confirmed by the judgment of a competent court;691 a talaq pronounced in Saudi Arabia and certified by a Saudi religious court as required by Saudi Sharia law; and a customary “panchayat” divorce registered in Gujarat, India.692 In H v H (Validity of Japanese Divorce),693 the court held that a form of consensual divorce under Japanese law (“kyogi rikon”), which required the parties to sign a form called a rikon todoke and which became effective only upon registration of the form in the manner prescribed by Japanese law, was within the ambit of “other proceedings”. The involvement of the state in the form of requiring registration of a divorce by consent was more than “simply probative” and certainly was not to be regarded as “mere surplusage”; the state did not simply prove the divorce that the parties had achieved by their prior act of consent, for the consent of itself created nothing. Although the state exercised no discretionary power of veto, the formalities of registration by the state were essential to the divorce; no registration, no divorce.694 The fact that the state employee who effected the registration played no more than an administrative role did not make the procedure as a whole purely administrative.
(c) Extra-judicial divorces and annulments obtained in the British Isles
The type of situation with which we are concerned here is illustrated by the case of the pronouncement of a talak in England,695 whether it is a “bare” talak or one followed by further procedures in, say, Pakistan.696 The common law position was that, if such divorces were recognised as valid under the common law recognition rules, ie if recognised by the law of the domicile,697 then they would be recognised in England, notwithstanding the fact that the talak was pronounced in England.698 The Recognition of Divorces and Legal Separations Act 1971 left this position unaffected;699 but two years later section 16(1) of the Domicile and Matrimonial Proceedings Act 1973 denied recognition to any such divorces obtained after 1973. It provided that “no proceedings” in the British Isles “shall be regarded as validly dissolving a marriage unless instituted in the courts of law” there. This general approach is maintained in section 44(1) of the Family Law Act 1986, but with rather different wording:700 “No divorce or annulment obtained in any part of the British Isles shall be regarded as effective in any part of the United Kingdom unless granted by a court of civil jurisdiction.” This means that extra-judicial divorces and annulments wholly obtained in any part of the British Isles will not be valid in England, including of course such divorces and annulments References(p. 1020) obtained in England.701 Nor will they be valid where some part of the proceedings takes place in England and others abroad.702
The inclusion of annulments marks an extension from the 1971 Act; but in the absence of evidence of extra-judicial separations in the British Isles it was not felt necessary to provide for denial of their recognition.703 What now seems clear is that any form of extra-judicial divorce or annulment obtained in the British Isles will be denied effect in England. Finally, the 1986 Act follows the pattern of the earlier legislation704 and preserves the effect of an extra-judicial divorce obtained in the British Isles before 1974 and which would be recognised under the common law rules then applicable.705 This saving provision is limited to divorces and does not apply to extra-judicial annulments.
(d) Recognition of extra-judicial divorces, etc obtained overseas
It is necessary to examine separately the recognition rules for extra-judicial divorces, etc obtained overseas depending on whether or not there are “judicial or other proceedings”.706
(i) Where there are proceedings
The basic approach where there are proceedings is that recognition of the divorce, etc is governed by the general rules as to recognition already discussed in relation to judicial divorces, etc. So, the divorce, etc must have been obtained in a country where one party to the marriage was domiciled (in the English or the foreign sense) or habitually resident or of which one party was a national,707 and it must have been effective under the law of that country.708 All the other provisions of Part II of the 1986 Act applicable to judicial divorces, etc apply to divorces, etc obtained by other types of proceedings.709 It might be noted that, as at common law,710 an extra-judicial divorce, etc obtained by proceedings can be recognised in England despite the fact that both spouses are domiciled in England. So, a talak obtained in Pakistan by a husband who is a Pakistan national can be recognised in England, notwithstanding the English domicile of both spouses.711
The application of these general rules as to recognition in the context of divorces, etc obtained by extra-judicial proceedings does raise a number of special problems. The jurisdictional rules assume that the divorce, etc is obtained by the particular proceedings,712 that the divorce, etc is effective under the law of the country where it was obtained713 and that the connecting factors of habitual residence, domicile or nationality in the country where it was obtained are satisfied at the date of the commencement of the proceedings.714 These requirements mean References(p. 1021) that it is necessary to determine whether a divorce, etc is obtained by going through all, or only part of, the proceedings and to identify the date of the commencement of the proceedings by which it was obtained. These issues have arisen in the context of “transnational” talak divorces715 where it has been held that, though conciliation proceedings are required, and have taken place, in Pakistan, the earlier pronouncement of the talak in England constituted the commencement of the proceedings by which the divorce was obtained.716
Particular concerns arise, in the context of the recognition of extra-judicial divorces, etc in relation to the requirement that the divorce be effective “under the law of” the country where it was obtained.717 The effectiveness of a divorce, nullity or legal separation decree will be tested in terms of its validity in the courts which granted it, but it will often be necessary to determine in the case of an extra-judicial divorce, etc whether it satisfies the domestic law requirements of the country where it was obtained.718 For example, the House of Lords in Quazi v Quazi,719 whilst satisfied that the talak divorce obtained in Pakistan had satisfied the procedural requirements of that country’s Muslim Family Laws Ordinance 1961 (and thus was effective there),720 expressed much greater doubt as to the effectiveness under Thai law of the divorce by khula obtained in that country.721 It may also be the case that the country where the extra-judicial divorce, etc was obtained requires the parties to go through civil judicial proceedings, and the courts in Ontario have denied recognition on this basis to an extra-judicial annulment.722 However, the validity of an extra-judicial divorce can be tested not simply according to the domestic law of the country where it was obtained but also according to that country’s rules of private international law. Take the following example:
The husband and wife are Jews, both Israeli nationals domiciled in Israel, but habitually resident in British Columbia in Canada. They are divorced by gett before a Rabbinical court in British Columbia.
The requirements of the 1986 Act that there be judicial or other proceedings if recognition is to be based jurisdictionally on habitual residence are satisfied.723 The extra-judicial divorce is not valid under the domestic law of British Columbia but it will be recognised there under that province’s divorce recognition rules.724 On that basis it should be considered to be “effective” under the law of British Columbia and thus be recognised in England.725
(ii) Where there are no proceedings
We are concerned here with the special recognition rules for extra-judicial divorces, etc obtained overseas without any proceedings.726 This type of case can best be illustrated by such Moslem religious divorces as consensual divorce by khula727 or divorce by “bare” talak.728References(p. 1022) Under the Recognition of Divorces and Legal Separations Act 1971, such a divorce could only be recognised if the spouses were domiciled (in the English sense) in the country where it was obtained, or if it was recognised in the country or countries of their domicile.729 It was not enough that one spouse was habitually resident730 in, or a national of,731 the country where the divorce was obtained. It was not, however, a specific statutory requirement that the divorce should be effective in the country in which it was obtained.732
As has been indicated earlier,733 the Law Commission’s proposals734 to have one set of recognition rules for all overseas divorces, etc, coupled with a broadening of the concept of proceedings, was not accepted. Part II of the Family Law Act 1986 follows the general approach of the 1971 Act and provides special, and limited, recognition rules for overseas divorces, etc obtained where there are no proceedings. The central provision is section 46(2):
The validity of an overseas divorce, annulment or legal separation obtained otherwise than by means of proceedings shall be recognised if—
(a) the divorce, annulment or legal separation is effective under the law of the country735 in which it was obtained;
(b) at the relevant date736—
(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, annulment or legal separation 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.
It will be seen that the divorce, etc must be obtained in one country and be effective there. This can raise the same type of problem as has been discussed in relation to divorces obtained by proceedings in the case of a transnational divorce.737 It will be necessary to decide where, in the case of a divorce by mutual agreement, as in the Moslem khula, the divorce is obtained if the spouses are in different countries. It is also necessary that the divorce, etc be “obtained” in the country of the domicile. Where there are no proceedings, a divorce is not obtained in the sense of being granted or approved by a third party; it is only obtained in the sense of being obtained by reason of legal provision made for it.
The rules laid down in section 46(2) of the 1986 Act reveal three particular changes from the rules applicable under the 1971 Act, in addition to their extension to extra-judicial annulments.
References(p. 1023) The first is that there is an express statutory requirement that the divorce, etc be effective in the country in which it was obtained738 and, indeed, recognition may be refused if no official documents can be produced certifying that effectiveness.739
The second change concerns the jurisdictional test. Section 46(2) follows the pattern of the 1971 Act in limiting the jurisdictional basis to domicile. It also provides, as did the 1971 Act,740 that such a divorce, etc will be recognised not only if it was obtained in the overseas country in which both spouses were domiciled, but also if it was obtained in the overseas country in which one spouse was domiciled and was recognised in the country of the domicile of the other spouse.741 So, if a husband domiciled in Dubai obtains a “bare” talak there which is recognised in Pakistan, where the wife is domiciled, the essential requirements of section 46(2) are satisfied.742 There is no express requirement that the country of one spouse’s domicile in which the divorce, etc is recognised is an overseas country, to the exclusion of a part of the British Isles, including even England. Nevertheless, if one spouse was domiciled in England, recognition would be refused. There is here a circular problem, which also arose under the 1971 Act.743 The divorce will be recognised only if recognised in England and that is the very matter at issue. That being so, recognition must be refused.744 However, the domicile test under section 46(2) is more narrowly drawn than under the 1971 Act. Under that Act, recognition was allowed even though the overseas divorce, etc was obtained in a country in which neither spouse was domiciled, provided it was recognised either in their common domicile or in the countries of their separate domiciles.745 The 1986 Act, however, contains no such jurisdictional basis of recognition.
The third change from the jurisdictional rules under the 1971 Act is that, under those provisions, the reference to domicile was to domicile in the English sense. However, domicile under section 46(2) of the 1986 Act includes, rather surprisingly, domicile in both the English sense and that of the country where the divorce was obtained or recognised.746 So a “bare” talak obtained in, say, Dubai will be recognised in England if the spouses were domiciled in Dubai according to the law of Dubai on domicile in family matters, even though not so domiciled according to English law.
There is one major limitation on the recognition of overseas divorces, etc obtained where there are no proceedings, and that is the provision in section 46(2)(c) that recognition will be denied, despite the validity of the divorce, etc under the law of the domicile, if either party had been habitually resident in the United Kingdom for a year immediately preceding the date on which the divorce was obtained.747 The major purpose of this provision, like its References(p. 1024) predecessor in the earlier legislation,748 is to prevent circumvention of the rule that, in the case of British divorces, etc, recognition will only be given to those “granted by a court of civil jurisdiction”.749 It is not possible for the ban on extra-judicial divorces in the British Isles to be evaded by one spouse going to the country of his domicile to pronounce a “bare” talak, relying on the fact that it will be recognised in England if recognised in the country of the other spouse’s domicile, if either spouse has been habitually resident for one year anywhere in the United Kingdom, not just in England. In fact this type of anti-evasion provision is actually less necessary under the 1986 Act than under the previous legislation, because, under the old law, without such a prohibition, a “bare” talak pronounced in, for example, France by a husband on a day trip there would have been recognised in England if recognised in the domicile of both spouses.750 This cannot happen under the 1986 Act because the divorce, etc has to be obtained in the country of the domicile of one spouse and be effective under that law. It is, therefore, rather surprising to find that the anti-evasion provision in section 46 of the 1986 Act applies if either spouse had been habitually resident in the United Kingdom for one year, whereas the old law required them both to have been.751 Finally, it should be emphasised that this limitation on recognition of divorces, etc obtained in, or recognised under the law of, the spouses’ domiciles applies only to extra-judicial divorces, etc obtained “otherwise than by means of proceedings”. There is no general prohibition on the recognition in England of a divorce obtained in, for example, Pakistan, under the Muslim Family Laws Ordinance 1961, even if the spouses have both been habitually resident in England for years and even if they are both domiciled here, provided one of them is a Pakistan national.752
Not only does Part II of the 1986 Act provide an exclusive list of the jurisdictional bases on which overseas divorces, etc may be recognised in England,753 it also provides, in section 51, an exclusive list of the grounds on which recognition may be denied both to other British754 and to overseas divorces, etc.755 There are only two discretionary grounds on which another British divorce, etc may be denied recognition: res judicata and that there was no subsisting marriage between the parties at the time of the divorce, etc.756 On the other hand, an overseas divorce, etc may be denied recognition, not only on these grounds but also, if there have been judicial or other proceedings, on the grounds of want of notice of, or opportunity to take part in, the proceedings. Where there were no proceedings, recognition may be denied to an overseas divorce, etc if there is no certificate as to its effectiveness where it was obtained or, when recognition depends on reference to the law of the domicile of one of the parties in another country, if there is no certificate as to its validity under the law of that country. Finally, recognition will be denied to all overseas divorces if it would be manifestly contrary to public policy. It was thought to be inappropriate to allow a court in the United Kingdom References(p. 1025) to deny recognition to another British decree, etc on any of these further grounds. If it is felt necessary to attack a British decree on one of those bases, that should be done in the court which granted it.757 All the grounds of non-recognition mentioned so far are discretionary.758 There are, however, two further circumstances in which an overseas divorce, etc must be denied recognition, both of which have already been fully considered, namely if the jurisdictional requirements for recognition under the 1986 Act are not satisfied,759 or if the divorce, etc is not effective in the country where it was obtained.760 There is nothing in Part II of the 1986 Act to indicate that the right to challenge the recognition of a divorce, etc is confined to a party to the marriage. Such a restriction does not seem to have existed at common law,761 and Part III of the 1986 Act contemplates the making of declarations as to the validity or invalidity of a divorce, etc obtained outside England and Wales on the application by a person other than a party to the marriage.762
The various grounds for non-recognition laid down in section 51 of the 1986 Act must now be considered in more detail.
(b) Res judicata
In the 1971 Act there was no ground of non-recognition based specifically on res judicata. Instead, another British or a foreign divorce or legal separation would be denied recognition if it was obtained at a time when there was no subsisting marriage between the parties.763 One purpose of this provision was, however, to deal with issues of res judicata,764 as where the marriage has already been brought to an end by either an English divorce or nullity decree or a foreign one which was recognised in England. Whilst such an approach may be appropriate for the recognition of divorces and legal separations, it is not appropriate in the case of annulments where the whole issue in the foreign nullity proceedings for which recognition is now sought in England may be to declare that the marriage was void ab initio. On the other hand, there is common law authority that a foreign nullity decree may be denied recognition on the basis of res judicata, as in Vervaeke v Smith:765 in 1970, the wife sought to have her English marriage in 1954 annulled on the ground that her husband was already married at the time, even though he had gone through divorce proceedings in Nevada in 1946, and that it was a “sham” marriage, being celebrated simply to enable her to acquire British nationality. The English court refused to grant her a nullity decree—because the Nevada divorce was recognised in England and the fact her marriage was a “sham” was no ground for annulling it.766 Then, in 1972, the wife obtained a nullity decree from a Belgian court on the ground, considered but rejected in England, that the marriage was a “sham”. It was held, in the lower courts,767 that the Belgian decree satisfied the common law jurisdictional rules for the References(p. 1026) recognition of foreign annulments.768 Nevertheless, recognition was denied, on the basis of the doctrine of res judicata.769 The House of Lords had no doubt that the issue before the Belgian courts was the very point earlier decided in the English courts.770
It was thought that it would be desirable to retain the effect of this decision in any statutory regime for recognition of annulments, but that it would be inappropriate to extend the existing statutory rule from divorces to annulments. So, a new head of non-recognition based more specifically on res judicata had to be introduced.771 To this end, section 51(1) of the 1986 Act772 provides:
Subject to section 52 of this Act, recognition of the validity of—
(a) a divorce, annulment or judicial separation granted by a court of civil jurisdiction in any part of the British Islands, or
(b) an overseas divorce, annulment or legal separation, may be refused in any part of the United Kingdom if the divorce, annulment or separation was granted or obtained at a time when it was irreconcilable with a decision determining the question of the subsistence or validity of the marriage of the parties previously given (whether before or after the commencement of this Part) by a court of civil jurisdiction in that part of the United Kingdom or by a court elsewhere and recognised or entitled to be recognised in that part of the United Kingdom.
It is important to emphasise a number of points. Like the common law rule and the other statutory heads under section 51, this ground for non-recognition is discretionary. It applies to the recognition in England of divorces, annulments and legal separations whether they were granted elsewhere in the British Isles or obtained in some other foreign country. Furthermore, the earlier irreconcilable decision which brings the provision into play may be either an earlier English decision, as was the case in Vervaeke v Smith, or it could be an earlier decision from a court elsewhere but which is recognised in England under Part II of the 1986 Act. This statutory head does, however, only apply to an earlier decision of a court, and so the fact that there had been an earlier extra-judicial divorce which was recognised in England would not bring the provision into play.773 Since the earlier decision must relate to the “subsistence or validity” of the marriage, the provision would seem inapplicable where there has been an earlier decision refusing to grant a divorce or legal separation unless that was because there was held to be no marriage between the parties.774
(c) No subsisting marriage
The English court has a discretion to refuse recognition to a divorce or legal separation, whether granted elsewhere in the British Isles, or obtained overseas, if it was obtained at a time when, according to English law, there was no subsisting marriage between the parties.775 Under the 1971 Act, denial of recognition on this ground was mandatory776 but, because of the possible overlap with the res judicata ground, it was thought more appropriate that this head also should become discretionary.777 This head is limited to the recognition of divorces References(p. 1027) and legal separations because it is inappropriate in the case of annulments whose purpose is to declare that the marriage is invalid. Whilst there is some overlap with section 51(1), as where there is a prior “decision” dissolving or annulling the marriage, there are other cases for which this further provision is required. It may be, for example, that the marriage in question is regarded by English law (and this includes English rules of private international law) as void ab initio, even though there has been no annulment of it. Furthermore, the res judicata provisions of section 51(1) would not apply where the marriage is terminated by an extra-judicial annulment which is recognised in England.
(d) Want of notice of the proceedings
Recognition may778 be refused to an overseas779 divorce, etc which has been obtained by judicial or other proceedings if it was obtained without such steps having been taken for giving notice780 of the proceedings to a party to the marriage as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken.781 Recent examples of the recognition of the resulting divorce being refused include situations where the husband had acted contrary to an injunction restraining him from pursuing a divorce in Egypt and the wife had no notice or knowledge of the proceedings;782 or where, in divorce proceedings instigated by the wife in Ukraine, she falsely claimed that no address for service for the husband was available.783 Service by advertisement in a Ukrainian newspaper was therefore authorized by the Ukrainian court, although the husband had no opportunity whatever of coming across the advertisement.784 This provision would seem to embody the common law rules for denying recognition to a divorce or annulment on the ground of want of notice of the proceedings;785 so lack of notice will not normally affect the recognition of a foreign divorce, etc if the foreign court’s rules as to service or dispensation therefrom had been complied with.786 This is subject to the qualification that such rules are themselves not unreasonable.787 Indeed, “it cannot be sufficient merely to comply with local procedure, otherwise the provisions of the Act would be nugatory”.788 Recognition should still be denied where the lack of notice is consequent upon the petitioner’s fraud.789 In determining whether to deny recognition because of want of notice, the court will have to examine a wide range of factors, including whether one party has already decided not to take part in the foreign proceedings.790 In Duhur-Johnson v Duhur-Johnson,791 Jeremy Richardson QC concluded References(p. 1028) that, in determining whether reasonable steps have been taken by the petitioning spouse to notify the respondent spouse of the divorce proceedings in advance of their taking place, a judge should look at all the circumstances of the case, and the nature of the proceedings in the overseas jurisdiction. Whether reasonable steps have been taken is a question of fact in each case, to be judged by English standards. It has been held that the reference to “English standards” in this proposition should be taken to include “European standards applicable in the UK”.792 In particular, in interpreting the want of notice provision of s 51(3), reference should also be made to the corresponding provision of Article 22(b) of Brussels II bis. This will ensure that the same rules apply to an application seeking non-recognition of a divorce granted in an EU Member State and to an application concerning a divorce granted outside of the EU or in Denmark.793 Importantly, “whether the respondent spouse has notice of the proceedings is not the issue. It is whether the petitioner spouse has taken reasonable steps to notify the other party. The focus of inquiry is upon the actions of the petitioning spouse not simply a question of whether the respondent spouse knew about the proceedings.”794 Importantly, when exercising discretion, the court should be “very slow” to refuse recognition of the decision of the foreign court, especially where the order was made by an “independent, properly constituted court” applying procedural and substantive law that largely corresponds with the law of the forum.795
The application of this ground of non-recognition may not prove to be easy in the case of extra-judicial divorces, etc. It is only relevant to those cases of extra-judicial divorce, etc which have been obtained by means of judicial or other proceedings. So there must have been sufficient formality for these to be considered to be “proceedings”,796 but recognition may only be denied if the steps taken to give notice are inadequate with regard, inter alia, to the nature of the proceedings.797 It may be, therefore, that it is thought unreasonable to have to give notice of exiguous proceedings. This would certainly be compatible with the approach to the recognition of extra-judicial divorces at common law where recognition was given to informal divorces in the absence of any notice to the other spouse.798 Indeed, it has been suggested that the requirement, in what is now the 1986 Act, to have regard to the nature of the proceedings in deciding whether to deny recognition must “contemplate the possibility of proceedings which preclude the possibility of notice or participation”.799 In El Fadl v El Fadl,800 Hughes J declined to exercise his discretion to refuse recognition of a talak divorce on the ground of want of notice, for four reasons: first, advance notice could avail the wife nothing, the nature of the proceedings being such as to render notice of practically no value; secondly, the proceedings in question were the prescribed form of divorce in the Lebanon, where both parties were domiciled and in which they had been married, and both parties were taken to have known what the procedure was there and to which they were both subject by their personal law; thirdly, the divorce was accomplished in the forum (the Lebanon) which was the natural forum for both parties; and fourthly, the divorce was obtained in 1981, and it was not a proper exercise of discretion to refuse to recognise a divorce which is valid by the personal laws of both parties and of which they have both had knowledge for such a long References(p. 1029) period.801 Tellingly, his Lordship remarked: “I am certainly satisfied that it is not in the public interest to disturb a status which has existed according to the personal law of both parties for 17 years and on the basis of which I am satisfied that both parties have conducted themselves for at any rate two thirds of that period.”802 Similarly, in H v H (Talaq Divorce),803 Sumner J did not deny recognition to a Pakistani talaq divorce where the wife was not given notice or the opportunity to take part. In this case, the decision was based primarily on considerations of comity and international mobility. His Lordship noted that many people moved freely between the UK and Pakistan, and where there were close links between each country, it was vital that “marriages and divorces recognised by the country where they take place should be recognised in the other country unless there are good reasons for not doing so”.804 The fact that the wife was domiciled in England was not a good reason to refuse the recognition as she had been brought up and married in Pakistan to someone of the same background and neither party wished the marriage to continue.805
(e) Want of opportunity to take part in the proceedings
Recognition of an overseas806 divorce, etc obtained by proceedings may be refused if it was obtained without a party to the marriage having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings as, having regard to the nature of the proceedings and all the circumstances, he should have been given.807 There may be cases where a party is prevented by external events from taking part in the proceedings, as in time of war; but even then an English court has recognised a German nullity decree obtained in wartime despite the fact that the English respondent was unable to go to Germany.808 The courts have examined a range of matters as relevant to the issue of opportunity to take part in the proceedings. These include the failure of lawyers in the foreign country to comply with the respondent’s instructions,809 whether the respondent has the financial resources and time to attend or be represented in the foreign proceedings,810 or even the fact that the husband has the wife’s passport.811 The “opportunity” is not to be limited to the mere taking part in the proceedings; it must be an effective opportunity to place views before the court.812 However, the opportunity to take part in the proceedings does not necessarily require the spouse to attend the proceedings,813 and it has been held in one case that five days’ notice of foreign nullity proceedings was sufficient.814 In the case of an extra-judicial divorce, etc the exiguous References(p. 1030) nature of the proceedings will not, as in the case of lack of notice,815 necessarily constitute grounds for denial of recognition. Finally, the discretionary nature of the power to refuse recognition must be stressed.816 Even if the necessary opportunity is lacking, the court may still recognise the foreign divorce, etc.817
(f) Public policy818
Denial of recognition to an overseas819 divorce, etc on public policy grounds is specifically provided for in section 51(3)(c) of the 1986 Act.820 In particular, the provision states that recognition of the validity of an overseas divorce, etc may be refused if such recognition would be manifestly contrary to public policy. It seems very likely that the courts will, in applying this provision, seek guidance from relevant common law decisions.821 It should be emphasised that, again, the court has a discretion;822 there is no requirement that recognition be refused on this basis and there is some authority for the unusual view that the discretion would be exercised in favour of recognition even if such recognition would be manifestly contrary to public policy.823
It is suggested that Thorpe LJ was not correct, in Golubovich v Golubovich824 to submit that if the court has formed an opinion that recognition would be “manifestly contrary to public policy”, the exercise of any residual discretion could only be one direction, ie “refusal of recognition must follow”.825 The statute clearly leaves the decision on recognition to the discretion of the court, as s 51(3)(c) of the 1986 Act states that recognition of the validity of an overseas divorce, etc may be refused if such recognition would be manifestly contrary to public policy (emphasis added).
Section 51(3)(c) refers to recognition being “manifestly”826 contrary to public policy. This does no more than confirm the stated attitude at common law that the discretion is one to be exercised sparingly.827 Indeed “manifestly” has been held to add nothing to the common law rule;828 but the courts may prove to be willing to maintain the breadth which the common law rule had reached, and there is some evidence that the courts will deny recognition where References(p. 1031) the application of the foreign rule is, in the particular circumstances, felt to be contrary to public policy.829
The principles on which the statutory discretion should be exercised have been stated thus:
In exercising its discretion . . . this court should have regard to all the surrounding circumstances which would include a full investigation of the facts relied upon to support a refusal of recognition; the likely consequences if the petitioning spouse had been given the opportunity to take part in the proceedings; an assessment of what the legitimate objectives of the petitioning spouse are, and to what extent those objectives can be achieved if the foreign decree remains valid, and what the likely consequences to the spouses and any children of the family would be if recognition were refused.830
Further, it has been stated831 that the principle of comity is a relevant consideration;832 the conduct of the parties leading up to the divorce may be a relevant factor; and motivation may be relevant. In Golubovich v Golubovich,833 Thorpe LJ accentuated the gravity and undesirability of refusal to recognise a divorce granted by a foreign court of competent jurisdiction, particularly if the foreign state is a member of the Council of Europe, and in the situation where the other party was entitled in England to a remedy under Part III of the Matrimonial and Family Proceedings Act 1984.
In applying such principles, it has been held that the fact that a foreign decree has a different effect from an English one is not, as such, grounds of public policy for denying recognition to the former.834 The operation of such principles might be illustrated by Kendall v Kendall:835
H and W lived together in Bolivia. W decided to leave Bolivia, with their children, in 1974. Before leaving she signed documents, in Spanish (a language of which she had little understanding), which H told her were documents to permit her to take the children out of the country. In 1975 the Bolivian courts granted a decree of divorce, purporting to be a decree granted to W as petitioner. It was probably the case that the documents W signed constituted a power of attorney enabling a decree to be granted without W’s presence before the court.
As H was habitually resident in Bolivia at the time of the decree it ought, prima facie, to be recognised in England.836 It could not be denied recognition for want of notice under the relevant provisions of the Recognition of Divorces and Legal Separations Act 1971837 because they only related to lack of notice of, or want of opportunity to take part in, the proceedings in the case of the respondent.838 Here, the party disadvantaged was W, the apparent petitioner. However, Hollins J concluded that recognition of the decree would manifestly be contrary to public policy as the Bolivian court had been deceived, not just as to facts alleged in the petition, but as to the fundamental issue of whether W was petitioning at all.839
References(p. 1032) Finally, particular problems in relation to public policy may arise in the context of the recognition of extra-judicial divorces, etc. The recognition of extra-judicial divorces as such is not contrary to public policy.840 However, when it was thought841 that recognition of a “bare” talak, ie one delivered without any further proceedings, fell within the broad recognition rules of the Recognition of Divorces and Legal Separations Act 1971,842 it was suggested that, though it would not be right to lay down a general rule for “bare” talaks, such a divorce could be denied recognition on the public policy grounds that it was done in secrecy and without the wife being in any way aware that it was about to happen.843 It is now the case that specific provision is made in the 1986 Act for the recognition of “bare” talaks and other divorces, etc where there are no proceedings, but only on the limited jurisdictional basis of domicile.844 “Bare” talaks cannot, therefore, be denied recognition, as such, on public policy grounds, because Parliament has provided clearly for their recognition. The courts will remain free, however, to take account of the particular circumstances of a case as justifying denial of recognition. In El Fadl v El Fadl,845 Hughes J remarked: “I am satisfied that however much a unilateral divorce without notice may offend English sensibilities comity between nations and belief systems requires at any rate this much, that one country should accept the conscientiously held but very different standards of another where they are applied to those who are domiciled in it.”
It has also been suggested that recognition should be denied on public policy grounds to an extra-judicial divorce, etc if both parties were domiciled in England when it was obtained:
It must plainly be contrary to the public policy of the law in a case where both parties to the marriage are domiciled in this country to permit one of them, whilst continuing his English domicile, to avoid the incidents of his domiciliary law and to deprive the other party to the marriage of her rights under that law846 by the simple process of taking advantage of his financial ability to travel to a country whose laws appear temporarily to be more favourable to him.847
This suggestion was made in the context of the recognition of a “bare” talak and the problem cannot in fact now arise in that context because recognition is based on the domicile of the parties.848 This approach has, however, been welcomed849 as more widely appropriate to the case of extra-judicial divorces, etc where there are proceedings which could be recognised, even though both spouses are domiciled in England, because they have been obtained, for example, in the country of which one spouse was a national.850 There are difficulties with so broad an approach. Why should such a rule be limited to extra-judicial divorces, etc as there may well be judicial divorces, etc where a spouse domiciled in England takes advantage of his financial resources to obtain a valid divorce abroad, to the disadvantage of the other spouse, References(p. 1033) also domiciled in England? If all divorces, etc obtained in such circumstances are to be denied recognition on public policy grounds, this seems to run counter to the policy of Parliament, for the legislation does not in terms preclude their recognition nor could it under the 1970 Hague Convention on which the 1986 Act is still based.851
It will be recalled852 that where a divorce, etc is obtained overseas but there are no judicial or other proceedings, eg a “bare” talak, the only jurisdictional basis for recognition is domicile in the English sense. However, even if the overseas divorce, etc satisfies that jurisdictional test and is effective in the relevant country of the domicile,853 it may be denied recognition on any one of the following three bases for non-recognition already discussed: res judicata, no subsisting marriage or that recognition would manifestly be contrary to public policy.854 However, the two bases concerned with notice of, or opportunity to take part in, the proceedings855 are not applicable, for obvious reasons, where there are no proceedings. Instead, a foreign divorce, etc obtained without proceedings may be refused recognition if “there is no official document certifying that the divorce, annulment or legal separation is effective under the law of the country where it was obtained”.856 The purpose of this provision seems to be evidential, rather than going to issues of justice between the parties. An official document is defined as one “issued by a person or body857 appointed or recognised for the purpose”858 in the foreign country. So the operation of the provision will depend on whether court or other officials in the country where a bare talak or the like is obtained are prepared to provide such certification for the purposes of English proceedings, and certificates may not be easy to obtain.859 Whilst proof of effectiveness of such divorces has been shown on occasions to be a problem,860 one would hope that an English court is unlikely to deny recognition if it is satisfied as to the effectiveness of the divorce, etc even though no certificate is forthcoming. If that is so, it is hard to see what real purpose this provision serves.861
This provision on certification assumes that the divorce, etc is obtained in the country where both parties were domiciled at that time,862 but there is a variant of it to deal with the case where the divorce, etc is obtained in the country where one spouse was domiciled and is recognised in the country of the domicile of the other spouse.863 In such a case, recognition may be denied not only if there is no official certificate as to the effectiveness of the divorce where it was obtained, but also if there is no “official document” certifying that it is recognised as valid in the country of the domicile of the other spouse.864 So, if a husband domiciled in References(p. 1034) Dubai obtains a “bare” talak there,865 his wife being domiciled in Pakistan, the divorce may be denied recognition if there is no official certificate as to its effectiveness in Dubai or that it will be recognised in Pakistan.
The general rule in Part II of the 1986 Act is that its provisions govern the recognition of both British and overseas divorces, annulments and legal separations, whether they were obtained before or after the 1986 Act came into force.866 There are two kinds of limitation on this general retrospective effect, both of which are fully explained in the 13th edition of this book.867
(viii) Effect of a foreign divorce, annulment or legal separation868
One problem which is untouched by the 1986 Act and by Brussels II bis is as to the effect to be given in England to a divorce, annulment or legal separation obtained outside England (described in this section of the chapter as a “foreign” divorce, etc)869 and whose recognition is governed by Part II of that Act, or by Brussels II bis. This is left to the common law and it is convenient to consider the three matrimonial causes separately.
The effect of a foreign divorce on the married status of the parties is obvious. If, in the eyes of English law, the divorce is valid, it effectively terminates that status;870 if it is void for want of jurisdiction, the status remains unchanged. Nevertheless, the divorce may have an effect with regard to certain subsidiary purposes other than the assessment of status. The question of the effect of a foreign divorce seldom arises in practice, but three situations merit some discussion.
First, although a valid divorce terminates the married status of the parties, it does not automatically terminate a maintenance order in favour of the wife made by an English court at a time when they were living permanently in England.871 The court has discretion to retain, vary or discharge it, and in exercising this discretion it is relevant to consider whether the wife participated in the divorce proceedings, whether the question of maintenance was raised in the foreign court and whether the basis for the divorce was insufficient by English law.872
It is rare that a foreign divorce will be denied recognition in England for want of jurisdiction, given the breadth of English recognition rules under the 1986 Act, and the prohibition upon review of jurisdiction of the court of origin under Article 24 of Brussels II bis. If, however, lack of jurisdiction were to render the foreign divorce invalid in England, it would not be altogether devoid of effect even though it leaves the married status of the parties undisturbed.873 It may at least require consideration in the context of desertion and estoppel. There is little authority on the question whether the effect of an invalid divorce is to exclude from consideration the period during which the respondent may have been in desertion prior to the divorce. This may be a critical factor if the petitioner later institutes divorce proceedings in England on the ground that the marriage has broken down in that the respondent has References(p. 1035) deserted the petitioner for a period of at least two years immediately preceding the presentation of the petition.874 Although the answer no doubt depends on the conduct of the parties, it would appear from the two relevant decisions, both concerned with a Jewish divorce by delivery of a gett, that the desertion is not terminated unless the respondent initiated or instigated the foreign suit or at least freely consented to its institution.875
Another question is whether a foreign divorce, invalid for want of jurisdiction, is affected by the doctrine of estoppel. It is clear that there is no estoppel so far as the married status of the parties is concerned. Neither party is precluded from denying that in the eyes of English law the parties are still husband and wife.876 It is, however, unclear whether the doctrine of estoppel can be invoked for other purposes. Can, for instance, a woman who has obtained an invalid divorce in a foreign country claim a widow’s share of her deceased husband’s estate? To succeed, she must show that she was the “wife” of her late husband at the time of his death, which involves relying on the invalidity of the divorce. But can it not be maintained that she is estopped from impugning the decision of the court whose jurisdiction she herself invoked? This question has met with conflicting answers in Canada, though the Supreme Court of Canada877 has expressed itself in favour of there being no conclusive overriding principle of estoppel, and certainly there is no estoppel in the case of a person not a party to the foreign divorce.878 So far as English courts are concerned, there is in principle no room for estoppel, since the paramount issue from which all else flows is the marital status of the parties at the time of the husband’s death, and of that there can be no doubt.879
In considering the effect in England of a foreign annulment which is recognised in England, it is necessary to investigate what effect the annulment has in the country where it was obtained and compare that effect with the effect of an English nullity decree. Where the foreign annulment has the same effect on the status of the parties as an equivalent English decree, there will be little difficulty in giving full effect to it.881 Difficulty may arise where, for example, a decree annulling a voidable marriage is retrospective in effect, whilst an equivalent English decree is only prospective in effect.882 This problem has arisen in a decision concerned with the recognition in Scotland of a Northern Ireland nullity decree. It concerned a claim to social security: Social Security Decision No R (G) 1/85 where the facts were these:
The wife lived in Scotland. Her first husband died in 1966 and she had received a widow’s pension ever since. In 1980, in Northern Ireland, she went through a ceremony of marriage with M with whom she lived for just seven weeks before returning to Scotland. As soon as she married, her widow’s pension ceased to be paid. In 1982, she obtained a decree absolute from the Northern Ireland court declaring her second marriage void on the ground of References(p. 1036) non-consummation because of M’s impotence. In the light of that, she sought, in Scotland, to have her widow’s pension reinstated retrospectively. The effect in Northern Ireland of the nullity decree was that the marriage was voidable, and the decree had only prospective effect.883 However, an equivalent decree in Scotland would render the marriage void and have retrospective effect.
The two issues for the Social Security Commissioner were whether the Northern Ireland nullity decree should be recognised in Scotland and, if so, whether it should be given prospective or retrospective effect. If the former, the wife would lose; if it had the Scottish retrospective effect, she would succeed. The Commissioner had no hesitation in holding that the Northern Ireland nullity decree should be recognised in Scotland.884 Having rejected arguments that to recognise the Northern Ireland effect of the decree as prospective only would be contrary to Scottish public policy or that the effect was simply a matter of procedure to be ignored in Scotland,885 he followed the approach recommended by the Law Commission886 that the foreign effects of the annulment should normally be recognised and gave the Northern Ireland decree only prospective effect. To do otherwise would have given the decree greater effect in Scotland than it had in Northern Ireland as well as differing effects as between the two “spouses” who were domiciled in different countries.
Where the foreign annulment is not recognised, it should be treated in the same way as a foreign divorce that is not recognised.887 There is Canadian authority888 for the application of the doctrine of estoppel; but it is suggested that an English court should deny operation to the doctrine, whether the matter at issue is the direct one of marital status or a less central question, such as succession.
(c) Legal separation
An English decree of judicial separation entitles the petitioner to live apart from the respondent,889 but does not dissolve the married status of the parties.890 It is permanent in the sense that it remains in operation unless and until a discharge of the decree is ordered. The effect to be given to a foreign legal separation which is recognised in England was considered at common law in Tursi v Tursi:891
Two Italian subjects, domiciled in Italy, married there in 1942. The husband deserted the wife and never returned to her. In 1947, the wife obtained in Rome a decree of judicial separation, substantially similar in effect to an English decree, on the ground of the husband’s desertion. In 1955, the wife, who had been resident in England since 1949, petitioned for divorce on the ground of the husband’s desertion for three years,892 he being still domiciled and resident in Italy.
In deciding to recognise the foreign decree granted by the law of the domicile, Sachs J had to consider its effect under English law. He held that it should have the same effect with respect to desertion as an English decree of judicial separation, namely that a decree of judicial References(p. 1037) separation did not put an end to desertion, as at common law,893 but that the wife could treat any period of desertion occurring before the decree as occurring immediately before the petition for divorce.894 There seems no reason why the same conclusion should not be reached, under the Matrimonial Causes Act 1973, in respect of a petition for divorce on the ground of breakdown of marriage being evidenced by two years’ desertion, so that a period of desertion preceding a foreign legal separation may be deemed to precede the English petition.895 Similarly, it may be argued that the provision barring one spouse, judicially separated from the other, from succeeding to the latter’s estate on intestacy896 applies equally to foreign legal separations.897
More recent discussion of the effect to be given to a foreign legal separation which is recognised in England is found in Sabbagh v Sabbagh:898
The spouses were married in Brazil in 1965, where they were domiciled. Shortly thereafter they came to England and acquired a domicile in England; but in 1980 the marriage broke up. The husband returned to Brazil and became domiciled and habitually resident there, whilst the wife remained in England. In 1983 the husband obtained a decree of judicial separation in Brazil, the effect of which was to freeze the proprietary rights of the parties, without dissolving the marriage. The wife then petitioned for divorce in England and two issues arose: should the Brazilian decree be recognised and, if so, what effect did recognition have on the rights of the English court to grant the wife financial and other relief on her divorce petition?
There was no doubt in the mind of Balcombe J that the Brazilian decree, being a decree of the country of the petitioner’s domicile and habitual residence,899 should be recognised.900 The question remained, however, as to what effect was to be given to it. If its effect was the same as that of an English decree of judicial separation, it would prevent the English court from itself making a decree.901 However, the effects of the Brazilian decree on the property rights of the parties were not to be recognised in England. This was not required by the statute902 and “there is no basis here for the contention that the Brazilian decree of judicial separation will have the effect of excluding the English court’s powers to deal with the wife’s financial application once she has been granted a decree of divorce in England”.903
4. Presumption of Death and Dissolution of Marriage904
Section 1 of the Presumption of Death Act 2013905 provides that the High Court can, on application of a person with sufficient interest, make a declaration that a missing person is to References(p. 1038) be presumed dead. One of the effects of such a declaration is that it ends the missing person’s marriage.906 Strictly speaking, once a person is dead in the eyes of the law, it is superfluous to talk about the dissolution of his marriage. Nevertheless, it is desirable that a declaration of presumed death has this effect in order to meet the contingency of the presumption being proved wrong.907 Such decrees are, therefore, sui generis, because in the case of divorce the court proceeds on the assumption that the respondent is alive, whilst here the opposite is assumed.908
The jurisdiction of the English court for granting a declaration that a missing person is to be presumed dead is provided for in sections 1(3) and (4) of the Presumption of Death Act 2013.910 The jurisdictional grounds are examined in Chapter 23 (“Declarations”).911
(b) Choice of law
So far as choice of law is concerned, the problem is similar to that in divorce.912 The courts appear consistently to have applied English law, even though the petitioner was domiciled elsewhere,913 but their statutory obligation to do so914 has been repealed.915
The rules as to recognition of foreign decrees of presumption of death and dissolution of marriage are not wholly clear, for no statutory provision has expressly been made for them.916 If such a foreign decree is granted in circumstances which, mutatis mutandis, would have conferred jurisdiction on an English court, then it will be recognised in England.917 It is quite possible that the common law rules for the recognition of divorces might be applied by analogy so as to permit recognition in England of a decree granted in a jurisdiction with which the petitioner had a “real and substantial connection”.918 If the foreign decree can, properly, be classed as a decree of divorce919 then it may be recognised under the rules laid down in Part References(p. 1039) II of the Family Law Act 1986.920 Neither that Act nor the Convention on which it is based defines what is meant by a “divorce”. However, a foreign decree of presumption of death not coupled with one for dissolution of marriage might well not be recognised in England, on the ground that it was merely a matter of procedure and not of substantive law.921 Matters relating to the presumption of death were not within the contemplation of the drafters of Brussels II bis. As mentioned previously, the term “divorce” is not defined in the Regulation, but the recognition rules contained in Chapter III of the instrument922 should not be construed as applying to matters concerning the presumption of death, since such matters go beyond the “dissolution of matrimonial ties”.923
(i) Bases of jurisdiction
Chapter 2 (Dissolution, nullity and other proceedings)924 of Part 2925 of the Civil Partnership Act 2004 sets out the orders that an English court can make to bring a civil partnership to an end, or to provide for the separation of the parties. In particular, by virtue of section 37(1), the High Court or the family court926 has power to make four orders: (a) a dissolution order, which dissolves a civil partnership on the ground that it has broken down irretrievably;927 (b) a nullity order, which annuls a void or voidable civil partnership;928 (c) a presumption of death order, which dissolves a civil partnership on the ground that one of the civil partners is presumed to be dead;929 and (d) a separation order, providing for the separation of civil partners.930 The power which is conferred on English courts by Chapter 2 of Part 2 of the Act, to grant orders of a type specified in section 37(1), is expressly subject931 to sections 219 to 224 of the Act, discussed below. If, by virtue of sections 219 to 224 (jurisdiction of the court), an English court has jurisdiction in respect of a civil partnership, then the court is empowered to make an order under section 37.
(b) Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005 (“section 219 regulations”)932
Chapter 3 (Dissolution etc: jurisdiction and recognition)933 of Part 5934 of the Civil Partnership Act 2004 makes provision concerning the exercise of jurisdiction by courts in England and Wales for the dissolution or annulment of a civil partnership, or for the legal References(p. 1040) separation of civil partners. Section 219 of the Act empowers the Lord Chancellor to make provision as to the jurisdiction of courts in England and Wales935 in respect of civil partnerships, corresponding to the Brussels II bis Regulation,936 for cases where one partner is, or has been, habitually resident in a Member State, or is a national of a Member State, or is domiciled in a part of the United Kingdom.
The regulations made by virtue of section 219 are the Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005937 (known as the “section 219 regulations”), which apply to proceedings for the dissolution, annulment or legal separation of all civil partnerships, including overseas relationships entitled to be treated as civil partnerships by virtue of the 2004 Act.938
(c) Proceedings for dissolution or separation
Section 221(1) of the 2004 Act provides that the English court939 has jurisdiction to entertain proceedings for a dissolution order or a separation order in three situations. First, under section 221(1)(a), if the court has jurisdiction under the section 219 regulations.940 Regulation 4941 of the section 219 regulations provides that the courts in England shall have jurisdiction in relation to proceedings for the dissolution or annulment of a civil partnership or for the legal separation of civil partners where:942 (a) both civil partners are habitually resident in England; (b) both civil partners were last habitually resident in England and one of the civil partners continues to reside there; (c) the respondent is habitually resident in England; (d) the petitioner is habitually resident in England and has resided there for at least one year immediately preceding the presentation of the petition;943 or (e) the petitioner is domiciled and habitually resident in England and has resided there for at least six months preceding the presentation of the petition.944
Secondly, section 221(1)(b) of the 2004 Act provides that the English court has jurisdiction to entertain proceedings for a dissolution order or a separation order if no court has, or is recognised as having, jurisdiction under the section 219 regulations, and either civil partner is domiciled in England on the date when the proceedings are begun.945
Thirdly, section 221(1)(c) of the 2004 Act provides that the English court has jurisdiction to entertain proceedings for a dissolution order or a separation order if the following conditions are met: (i) the parties registered as civil partners in England or Wales; (ii) no court has, or is recognised as having, jurisdiction under the section 219 regulations; and (iii) it appears to the court to be in the interests of justice to assume jurisdiction in the case.946 The rationale behind this discretionary “forum necessitatis” rule of jurisdiction is to acknowledge the fact References(p. 1041) that many legal systems do not recognise the institution of civil partnership. The rule therefore provides protection to parties who registered as civil partners in England or Wales but are unable to obtain a dissolution or separation in the country of their residence and, at the same time, do not meet the jurisdictional requirements laid down by the section 219 regulations.
Section 221(2) of the 2004 Act provides that the English court947 has jurisdiction to entertain proceedings for a nullity order in three situations. First, under s 221(2)(a), if the court has jurisdiction under the section 219 regulations.948 Secondly, section 221(2)(b) of the Act provides that the English court has jurisdiction, if no court has, or is recognised as having, jurisdiction under the section 219 regulations and either civil partner (i) is domiciled in England on the date when the proceedings are begun, or (ii) died before proceedings were begun and was at death domiciled in England or had been, for one year immediately preceding death, habitually resident in England.949 Thirdly, section 221(2)(c) of the Act provides that the English court has jurisdiction, if the following conditions are met: (i) the parties registered as civil partners in England or Wales; (ii) no court has, or is recognised as having, jurisdiction under the section 219 regulations; and (iii) it appears to the court to be in the interests of justice to assume jurisdiction in the case.950 Like the equivalent “forum necessitatis” rule provided for in relation to dissolution and separation of a civil partnership,951 this provision facilitates access to court for civil partners who registered their partnership in England or Wales but can neither obtain an annulment in the country where they reside nor are able to demonstrate a close connection with England by meeting the jurisdictional requirements set out in the section 219 regulations.
Section 221(3) of the 2004 Act provides that when proceedings are pending in respect of which the court has jurisdiction by virtue of section 221(1) or (2), it also has jurisdiction to entertain other proceedings for dissolution, separation or nullity in respect of the same civil partnership, notwithstanding that jurisdiction would not be exercisable in those proceedings under section 221(1) or (2).952
(f) Presumption of death and dissolution of civil partnership
By section 222 of the 2004 Act, the English court has jurisdiction to entertain proceedings for a presumption of death order, on an application made by a civil partner, if: (a) at the time the application is made, the High Court does not have jurisdiction to entertain an application by that civil partner under section 1 of the Presumption of Death Act 2013 for a declaration that the other civil partner is presumed to be dead,953 and (b) the parties registered as civil partners of each other in England and it appears to the court to be in the interests of justice to assume jurisdiction in the case. This “forum necessitatis” rule of jurisdiction provides a safeguard to civil partners who registered their partnership in England but, at the time of the application for a presumption of death order, do not meet the jurisdictional criteria for References(p. 1042) proceedings for a declaration of presumed death under section 1 of the Presumption of Death Act 2013.954
(ii) Procedural issues
(a) Service of the petition
The rules on service of a petition for dissolution, etc are the same as those concerning petitions for divorce, etc.955
(b) Staying proceedings
The Family Procedure (Civil Partnership: Staying of Proceedings) Rules 2010,956 made under section 223 of the 2004 Act, make provision for civil partnerships corresponding to that which is made for marriages in Schedule 1 to the Domicile and Matrimonial Proceedings Act 1973.957 The Rules make equivalent provision, mutatis mutandis, for obligatory958 and discretionary959 stays of civil partnership proceedings in England for cases where civil partnership proceedings960 are continuing in another jurisdiction outside England.961 Given the close similarity between the regime set out in the 2010 Rules and that which applies to concurrent matrimonial proceedings, it is not proposed to examine the Rules in detail. In outline, however, rule 2 requires a party who is seeking an order in civil partnership proceedings to furnish the court with particulars of relevant civil partnership proceedings in another jurisdiction. Rule 3 provides for obligatory stays in relation to proceedings in a related jurisdiction.962 Rule 4 concerns discretionary stays of civil partnership proceedings in a non-related jurisdiction.963 Rule 5 relates to discharge of orders staying proceedings under rules 3 and 4. Rule 7 concerns the court’s power to make ancillary relief orders where a stay is imposed, and rule 8 deals with the effect of orders already made in civil partnership proceedings which have been stayed.
(b) Choice of law
(i) Dissolution, separation orders and presumption of death orders
There is no direct reference in the Civil Partnership Act 2004 to choice of law. In the case of proceedings for dissolution of a civil partnership in England, a decree of dissolution will be granted only in accordance with sections 44 to 48 of the 2004 Act (ie English domestic law provisions on dissolution). Similarly, as regards proceedings for separation orders, such an order will be granted only in accordance with sections 56 and 57 of that Act (ie English domestic law provisions on separation). Finally, the court may make a presumption of death order only if the provisions of section 55 are satisfied (ie English domestic law provisions on presumption of death orders).
References(p. 1043) (ii) Nullity
The position is more complicated in relation to nullity. In the case of civil partnerships registered in England, a decree of nullity will be granted by an English court only in accordance with sections 49 to 53 of the 2004 Act.964
Section 54 of the Act lays down special rules as to the validity of civil partnerships registered outside England and Wales, to be used by the English court (having jurisdiction under section 221(2) of the Act)965 when determining whether, under English law, a civil partnership is void or voidable where the parties did not register as civil partners in England and Wales.966 As far as an apparent or alleged overseas relationship967 is concerned, it will be held to be void968 if (a) the relationship is not an overseas relationship,969 or (b) even though the relationship is an overseas relationship, the parties are not treated as having formed a civil partnership under Chapter 2 of Part 5 of the Act.970 A civil partnership registered overseas is voidable971 if: (a) it is voidable under the law of the country where the relationship was registered, including its rules of private international law;972 (b) the circumstances fall within section 50(1)(d)973 of the Act; or (c) where either party was domiciled in England or in Northern Ireland at the time of registration of the relationship, the circumstances fall within section 50(1)(a), (b), (c) or (e).974 The Explanatory Notes to the Act make clear that where a civil partnership is voidable under section 54, the provisions of section 51 (bars to relief where civil partnership is voidable) are applicable. Where, however, a civil partnership is voidable by virtue of application of foreign law, the bars to relief will apply only to the extent that they are applicable under the foreign law.975
(c) Recognition of dissolution, annulment and separation
Chapter 3 (Dissolution etc: jurisdiction and recognition)976 of Part 5977 of the Civil Partnership Act 2004 makes provision in sections 233 to 238 concerning recognition of the dissolution or annulment of a civil partnership or the legal separation of civil partners.
(ii) Effect of dissolution, annulment or separation obtained in the United Kingdom
Section 233978 of the 2004 Act states that no dissolution or annulment obtained in one part of the United Kingdom is effective in any part of the United Kingdom, unless obtained from References(p. 1044) a court of civil jurisdiction. The validity of a dissolution, etc which has been obtained from a court of civil jurisdiction elsewhere in the United Kingdom shall be recognised in England, subject only to limited defences, namely: (a) if the dissolution, etc was obtained at a time when it was irreconcilable with a decision determining the question of the subsistence or validity of the civil partnership previously given by a court in England, or entitled to be recognised in England;979 or (b) if the dissolution, etc was obtained at a time when, according to English law, there was no subsisting civil partnership.980
(iii) Recognition in the United Kingdom of dissolution, annulment or separation granted in a Member State981
Section 234 of the 2004 Act provides that the validity of an overseas dissolution, etc is to be recognised in the United Kingdom only by virtue of the scheme of recognition imposed by sections 235 to 237 of the Act, which, in turn, are subject to the recognition rules set out in the section 219 regulations.982 Section 219 of the Act empowers the Lord Chancellor to make provision as to the recognition in England and Wales of any judgment of a court of another Member State which orders the dissolution or annulment of a civil partnership, or the legal separation of civil partners.983 Part 2984 of the section 219 regulations lays down rules concerning the recognition and refusal of recognition of judgments985 made by a court986 in another Member State.987 The scheme988 of recognition of overseas judgments is a peculiar conglomerate of provisions, partly modelled upon the provisions of Chapter III, Section 1 of Brussels II bis, and partly upon Part II of the Family Law Act 1986.989 Whilst it was no doubt convenient to draft the regulations in this manner, the wisdom of so doing is far from clear.990 The overall policy has been to provide, where possible, parity of treatment between civil partners and spouses.
Given the close similarity between the rules for recognition of judgments set out in the section 219 regulations and those which have been examined in the context of Brussels II bis and the Family Law Act 1986,991 it is not proposed to examine the former in detail. In References(p. 1045) outline, regulation 7 states that an overseas judgment shall be recognised in England without any special formalities. Regulation 8 sets out criteria for refusal of recognition of a judgment, adopting,992 peculiarly, the bifurcated scheme contained in Part II of the 1986 Act, according to whether or not the judgment has been obtained by means of proceedings. Regulations 9, 10 and 11, based on Brussels II bis,993 prevent the court from reviewing the jurisdiction of the Member State of origin, and from reviewing the substance of that judgment, and ensure that a judgment is recognised notwithstanding that there might have been a different result if English law had been applied to the facts of the case. Regulation 12 allows the court to stay proceedings for recognition when there is an appeal outstanding against that judgment.994
(iv) Recognition in the United Kingdom of dissolution, annulment or separation granted other than in a Member State995
Section 234 states that the validity of an overseas (ie non-Member State)996 dissolution, etc is to be recognised in the United Kingdom only by virtue of the scheme of recognition imposed by sections 235 to 237 of the 2004 Act. The grounds for recognition are set out in section 235(1) and (2), and for refusal of recognition in section 236, and essentially mirror the terms of sections 46(1) and (2) and 51 of the Family Law Act 1986. Given the close similarity of wording, it is not proposed to examine sections 235 and 236 in detail.997 Two provisions which meri