Transnational Divorces Under the Family Law Act 1986

Abstract

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,

Intersecting categories in the dissolution of transnational marriages: A socio‐legal perspective

“…As regards the “transnational divorce” concept, it appears for the first time in law studies and socio‐legal studies (Forsyth, 1987; Pilkington, 1988) in which it is defined as a “divorce where some of the relevant acts are performed in country A and some in country B” (O'Brien, 1999, p. 487). Research in these fields focuses on judicial proceedings and religious divorces such as the Muslim talaq 2 and the Jewish ghet 3 (Murphy, 2005).…”