Report No. 65
II. Provision in English Act as to Non-Recognition of Ancillary Order
19.4. Section 8(3) of the English Act of 1971.-
At this stage, we may, in order to indicate more precisely what we have in mind, refer to section 8(3) of the English Act of 1971, which reads1
"(3) Nothing in this Act shall be construed as requiring the recognition of any findings of fault made in any proceedings for divorce or separation or of any maintenance, custody or other ancillary order made in any such proceedings."
1. Section 8(3), English Act of 1971.
19.5. Principle underlying the English provision.-
The principle underlying this provision in the English Act is that a decree of divorce primarily determines status, and it is not necessary for another country to recognise ancillary orders passed in consequence of the decree, nor is it necessary for that country to recognise the findings of fault. Both these matters are, so far as the foreign country is concerned, unimportant. Moreover, the first belongs to the realm of obligation1. As Parker L.J. (as he then was), observed with reference to ancillary orders in general2-
"The application of the foreign law as to status does not involve applying the foreign law as to obligation."
It is true that these observations were not made in the context of divorce, but they do apply to divorce. Thus, it has been held' that dissolution of a marriage by a foreign court does not put an end to maintenance, even where an English court has made an order for alimony in a suit for judicial separation. It was so held by the Court of Appeal in Wood v. Wood, (1957) 2 All ER 14.
1. Para. 19.6, infra.
2. Metliss v. National Bank of France, (1957) 2 All ER 1 (13) (CA) (per Parker,
19.6. English case of Wood v. Wood.-
In the English case of Wood v. Wood, (1957) 2 All ER 14 (24, 29): 100 SJ 860, reversing (1956) 3 All ER 645 referred to above, the Court of Appeal drew a distinction, in regard to divorce law, between, on the one hand, matters of status, and on the other hand, matters of personal right and obligation flowing from a decree. The English court accepted the foreign decree as ending the status of marriage, but did not accept the contention that the foreign decree discharged existing personal rights under the maintenance orders. To that extent-but only to that limited extent-is the doctrine of "divisible divorce" accepted-a doctrine often put forth1 as a description of the rule under discussion.
In a note on Wood v. Wood, (supra), a learned writer observed2:-
"So far as the problem under discussion is concerned, it would seem to be both good law and good policy that an adjudication by the courts of the husband's domicile upon his, wife's right to maintenance should not be recognised without possibility of question simply because the dissolution of the marriage which was the outcome of the same proceedings would itself be so recognised As a matter of policy, it is scarcely desirable that, regardless of the circumstances, an English court should in all cases be compelled to deprive a woman, resident and probably now domiciled in England, who has possibly committed' no offence known to English law, of her rights and those of her children under a maintenance order, leaving her to obtain what relief (if any) the court of a possibly distant country has decided to give her in proceedings of which she possibly and reasonably knew nothing."
1. Para. 19.10, infra.
2. P.B. Carter in (1957) 33 Brit Y B Intl Law 336.