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Report No. 65

IV. Divisible Divorce

19.10. Collateral orders and 'divisible divorce'.-

It is in this context that the expression "divisible divorce" is often used1, but, strictly speaking, the expression is not accurate2. What is divisible is not the divorce, but the composite order, of which divorce is the occasion. A right to support normally exists under the marital status, but it is a purely personal right, owed by one spouse to the other as an individual. Though alimony is often awarded as an incident to a divorce decree, it may be granted without divorce, as a decree for separate maintenance. The decree for maintenance thus given does not affect the existence of the marital status; that remains as before, still subject to a divorce action brought at the proper forum. Leflar3 has explained this aspect.

Leflar then points out3:

"Conversely, a prior alimony award is not always superseded by a later ex parte divorce decree to which the one to whom alimony has been awarded was not a party. It will sometimes be impossible to secure a valid award of alimony in connection with an admittedly valid divorce decree, since the divorce action may proceed in rem against the domiciliary marital status, with only the suing plaintiff before the court. The action for alimony must be based either on personal jurisdiction over the defendant sued, or on attachment or garnishment brought against his local property. In such case, the prior decree for separate maintenance still remains in force after the divorce, if the law of the state in which the prior decree was rendered says that it dies4."

1. E.g. see Leflar Conflict of Laws, (1968), p. 551.

2. Para. 19.6, supra.

3. Leflar Conflict of Laws, (1968), p. 551.

4. Estin v. Estin, (1948) 334 US 541.

19.11. Provision in the Convention against recognition of finding of fault and ancillary orders.-

In this connection, it may be noted that the second paragraph of Article 1 of the Hague Convention1 indicates that the Convention is limited to securing recognition of the fact that the marriage has been dissolved. The underlying objective, in the minds of most delegations attending the discussions that led to the Convention, was to reduce artificial barriers to the re-marriage of either spouse after divorce. This made them unsympathetic to a German proposal, espoused also by the delegations of Austria, Holland and Belgium, to secure the recognition, under the Convention, of findings of fault. This proposal of Germany seemed to ignore the fact that, in different countries with different social conditions, different views may be taken of what amounts to "fault" or whether, indeed, any account should be taken of fault.

It may be noted that in some countries, divorce is allowed irrespective of fault, e.g., by mutual consent. Apart from findings of fault, the delegations were reluctant to extend the Convention to ancillary orders, such as, those relating to maintenance and to the custody of children, partly because of the existence of other Conventions2 relating to such orders, and partly because of the fear of introducing complications which might prejudice agreement on the essential objectives of the Convention. Ancillary orders, such as, orders for the payment of maintenance or orders regulating the custody of or access to children, present special problems, because they are seldom final in their effect.

1. Article 1, second paragraph of the Hague Convention.

2. E.g., (a) the Convention of October 24, 1956, on the law applicable to alimony obligations towards children, and

(b) the Convention of April 15, 1958, relating to the recognition and execution of decisions concerning alimentary obligations towards children.

19.12. Recommendation not to recognize ancillary orders.-

These were the reasons which explain Article 1, second paragraph, of the Convention, and broadly speaking, these reasons justify the inclusion of a specific provision on the subject. For this purpose, section 8(3) of the English Act, which we have already quoted1, furnishes a suitable precedent. We agree with the principle on which it is based2, and we recommend that it should he adopted.

1. Para. 19.4, supra.

2. Para. 19.5, supra.

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