Report No. 65
8.1. Recognition of extra-judicial foreign divorces.-
In discussing the English law of recognition, we have so far confined ourselves to the recognition or non-recognition of foreign judicial divorces.-i.e., the competence of a foreign court to grant a divorce or judicial separation. We have not touched the more difficult question of recognition of foreign extra-judicial methods of divorce granted under the personal religious law of the parties. We shall now deal with it.
8.2. Scope and varieties.-
By "extra-judicial" divorces we mean divorces where there is no decree of the court. The varieties of extra-judicial divorces are numerous1. There may be some unilateral act-as, for example, the unilateral act of the husband, known as 'talaq' in Muslim law2 or the consensual act 'Chett' of Jewish law3-or there could be some other form.4
Sometimes, there may be a minor judicial formality also. At the trial in Russ v. Russ, (1962) 1 All ER 649 (651), quoted by the Court of Appeal also in (1964) Probate 315 for example, evidence as to Egyptian law was given by Dr. Jamal Nasir, an advocate in Mohammedan law who had practised in Mohammedan courts in Egypt. The effect of his evidence was conveniently summarised by the judge in the course of his judgment, as follows:-
"(a) Egyptian law recognises and gives effect to Mohammedan religious law as the personal law of a Mohammedan domiciled in Egypt.
(b) Under Mohammedan law a man may have four wives, in other words, marriage is potentially polygamous.
(c) Under Mohammedan law a man may divorce his wife irrevocably by pronouncing 'Talaq' three times in the presence of witnesses. No judicial proceeding or investigation is required before a man exercised this right. The divorce is constituted by the unilateral declaration of the husband in the presence of at least two witnesses. The wife need not be present, nor be given notice of the intention to divorce.
(d) Egyptian law recognises, and gives effect to, a Talak divorce pronounced by a Mohammedan domiciled in Egypt. The marriage is recognised by Egyptian law as dissolved with effect from the date of the declaration; and this is so wherever the marriage was solemnised. It gives effect to the dissolution in a number of ways; for instance. Talaq may be and almost always is pronounced before an authorised officer of the Egyptian court concerned with questions of personal status, whose duty it is to record the divorce in the records of the court. The record then constitutes, as Dr. Nasir was at pains to point out, the solemn recognition by the courts of Egypt of the fact of divorce. And the parties to the dissolved marriage may have recourse to the appropriate Egyptian court in matters of the maintenance and support of the divorced wife."
1. See paras. 8.3 and 8.4, supra.
2. Para. 8.6, infra.
3. Para. 8.5, infra.
4. See para. 8.4, infra (enumeration of various forms).