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Report No. 65

7.10. Real and substantial connection.-

In 1969, the House of Lords, in the case of Indyka,1added a further ground, whereunder recognition is afforded to any foreign decree of divorce "wherever a real and substantial connection is shown between the petitioner and the country or territory which granted the decree." Of course, the facts of the case were rather complicated and, moreover, since several judgments were given by the various law lords, it has not been found easy to make any definite statement as to the proposition laid down by the House.2 But, in general, the above is believed to be a fairly accurate statement of the gist of the decision, so far as is relevant to the question of recognition.

1. Indyka v. Indyka, 1969 AC 33 (HL).

2. As to nullity, see Law v. Gustin, (1976) 1 All ER 113.

7.11. Grounds of recognition summed up according to position at common law.-On the basis of what we have stated above, the rules of English common law on the subject of recognition of a foreign decree of divorce or legal separation (apart from statute) could be summed up, by stating that such recognition would be granted by an English Court if-

(a) the parties were domiciled in the foreign country concerned1; or

(b) the decree is obtained by the wife, and the facts are such that the English Court would have jurisdiction2 to grant divorce;

(c) the decree is such that though not granted by a court of domicile, it would be recognised by a court of domicile3; or

(d) a real and substantial connection is shown between the petitioner and the country which granted the decree4.

As to the last mentioned ground, however, it should be repeated that this ground, based on the case in the House of Lords in IIndyka v. Indyka, para. 7.10, supra is only a statement of the law as probably was laid down, and not as a very definite statement. In any case, the law on the subject is now to be found in the recent Act of 1971, which contains a statutory5 provision which, in effect, bars the extension of the grounds of recognition.

1. Para. 7.2, supra.

2. Para. 7.3, supra.

3. Para. 7.6, supra.

4. Para. 7.10, supra.

5. Chapter 8, infra.

Recognition of Foreign Divorces Back

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