WHETHER a transnational divorce 1 could be recognised in England under the Recognition of Divorces and Legal Separations Act 1971 (the "Recognition Act") was a question clearly decided in Fatima v. Secretary of State for the Home Dept. 2 The decision is not, however, entirely free of difficulties. On the construction of the Recognition Act it was held that a talaq pronounced by a husband, of Pakistani nationality, in England but perfected in Pakistan under the Muslim Family Laws Ordinance could not be recognised in England because section 2(a) required a single set of proceedings instituted in the same country as that in which the divorce was ultimately obtained. In the opinion of Lord Ackner, 3 with whom all the other Law Lords agreed, the proceedings in this case were instituted in England by the pronouncement of the talaq but the divorce was obtained in Pakistan on completion of the appropriate steps there; for the talaq is of no effect until that time. 4 Thus it was also impossible for the appellant to comply with the grounds of recognition laid down in section 3(b) which required him to be a national of the country in which the divorce was obtained at the date upon which the proceedings were commenced there. Despite the fact that the Recognition Act thereby created a limping marriage contrary to the policy of the Hague Convention 5 which it was designed to implement, 6 the House of Lords was confirmed in its interpretation by considering the policy of the legislature as revealed in section 16(1) of the Domicile and Matrimonial Proceedings Act 1973. That policy was "clearly ... to deny recognition to divorces obtained by persons within the jurisdiction and therefore subject to the laws of the United Kingdom, by any proceedings other than in a United Kingdom court". 7 In the light of that policy it could hardly be the intention of the * Lecturer in Law, University of Leeds. 1. The term, which was coined in R. v. Secretary of State for the Home Department, ex p. Fatima [1984] 2 All E.R 458, 463-^64, C.A., indicates an extrajudicial divorce in which the various elements which comprise the proceedings take place in more than one country. 2. [1986] 2 All E.R. 32 unanimously affirming the single judgment of the Court of Appeal,

No abstract

and Morris, The Conflict of Laws (10th ed., 1980), p.lll. 2. Halsbury's Laws of England (4th ed.), Vol.8, para. 482; Rayden, On Divorce (14th ed.), p.62. 3. [1979] 3 All E.R. 463. Until this decision judicial support had been found in Smith v. Smith 1962 (2) S. A. 930, a decision of the Federal Supreme Court of South Africa, and in the first instance decision of Solomon v. Solomon (1912) 29 W.N.(N.S.W.) 68, in Australia. 4. He had already held, on the facts as found, that Astrid Proll did not have the requisite animus manendi to acquire a domicile of choice in England. 5. Op. cit. supra n.l. 6. [1979] 3 All E.R. 463, 477. 7. Dicey and Morris, op. cit. supra n.l, at p. 101. 8. Abd-ul-Messih v. Farra (1888) 13 App. Cas. 431, 439. 9. The Domicile and Matrimonial Proceedings Act 1973, s.S, retains domicile as one of the jurisdictional criteria for divorce, nullity and judicial separation. In Puttick v. An. Gen. [1979] 3 All E.R. 463, jurisdiction to petition for a declaration as to the validity of marriage under the Matrimonial Causes Act 1973, s.45, was in issue. This depended upon the domicile of the petitioner. 10. Re Bischoffsheim [1948] Ch. 79; Legitimacy Act 1976, s.l. 885 (1984) 33 I.C.L.Q. 11. [1979] 3 All E.R. 463. 12. A marriage in which the parties do not intend to live together as husband and wife but which, by conferring a married status, is advantageous to one of the parties. And see Puttick v. Alt. Gen. [1979] 3 All E.R. 463, 469. 13. Dicey and Morris, op. tit. supra n.l. 14. Idem, p. 104 and n.133 and the authorities there cited. Mendes Da Costa, "Some Comments on the Conflict of Laws

No abstract