Report No. 65
III. English Law Before 1971
8.7. Extra-judicial divorces.-
As to extra-judicial divorces, the English rules of recognition before 1971 developed mainly in relation to polygamous marriages and underwent many changes. Initially, there was reluctance to recognise them, but later, there was greater readiness to do so. The leading English case on extra-judicial divorces is Har shefi1-to which we refer here because the rule laid down therein was valid at least when the Act of 1971 was passed. In that case, a domiciled English woman married a domiciled Israeli in Israel. For a time they lived together in England, though at all material times the husband retained his domicile in Israel. The husband delivered to the wife in England a Jewish "bill of divorcement", purporting to dissolve the marriage, and returned to Israel.
The wife remained in England. She sought a declaration in the English courts that her marriage had been validly dissolved and no longer subsisted, or, alternatively, that she was no longer married to the respondent. It was argued on behalf of the wife that, following the divorce, the wife had resumed her English domicile of origin and that was sufficient to give the court jurisdiction to declare her status. Denning L.J. said: "Now that involves a nice question, whether she has resumed her English domicile, and that depends on whether the divorce was valid or not.
If the divorce was valid she was free to resume her English domicile and she has in fact resumed it; but if the divorce was invalid, she is still married to her husband and she retains his domicile. So the jurisdiction of the court depends on the validity of the divorce; and that depends in turn on the law of Israel. I do not think that we should send the wife to Israel to determine that question. The English courts can hear evidence of Israel law and can decide whether the divorce was valid by that law or not. If it was valid by that law, then the English courts have jurisdiction to declare it to be so."
The divorce was ultimately recognised, because it was valid by the law of domicile.
1. (a) Har Shafei v. Har Shafei, No. 1, (1953) 1 All ER 983. For comments, see (1953) 30 SYBIL 524-527.
(b) Har Shafei, No. 2, (1953) 2 All ER 373.
8.8. Thus, in ar Shafei, (1953) 1 All ER 783 where the question of recognition arose in relation to a Jewish divorce by delivery of a bill of divorcement, it was implicit in the decision of the court of appeal that the question depended, not on the existence of any decree, but on whether such a divorce would be recognised by the court of the domicile, viz., the Republic of Israel. In Sasson v. Sasson, 1924 AG 1007 the decision of the Privy Council was founded on the fact of recognition by the court of domicile of the validity of a similar Jewish divorce. Armitage v. A.G., 1906 Probate 135 shows that a divorce will be recognised, notwithstanding that there is no decree of the court of the domicile, provided it is proved that it would be recognised by the court of the domicile. In Ratanchai v. Ratanchai, (June 3, 1960), "The Times", June 4, 1960, cited in Russ v. Russ, (1964) Probate 315 recognition was accorded to divorces valid by the law of the domicile, even though not pronounced by any court.
8.9. Judicial law.-
The view that English law will not recognise a foreign divorce unless "decreed by a court of law" or "involving some, judicial process" has not, thus, found favour.1 The Court of Appeal in Russ v. Russ, 1964 Probate 315 did however, expressly rely on the fact that the foreign divorce involved some judicial process as a feature distinguishing it from the Hammersmith Marriage case, (1917).
In the case of Lee v. Lau, (1964) 2 All ER 248; Comment by Webb in (1965) 28 Modem Law Review 109 an agreement of divorce entered into by a husband and wife in Hongkong, which had been unaccompanied by any judicial act, was held to have validly dissolved the marriage between them. In this case, the husband and wife were born in Hongkong, and lived there during their childhood. In Manning v. Manning, (1958) 1 All ER 291, Comment by unger in (1958) 21 Modem Law Review 415 a Norwegian divorce was recognised by the English court. It had been granted not by a court of law, but by an administrative authority,-the County Governor of Beggen.
1. Kennedy in (1957) 35 Can Bar R 642 (645): Cowen (1952) 68 LQR 88 (92).
8.10. Position summed up.-
On the basis of the above case law, the position before 1971 can be summed up as follows:
(a) If, by the law of domicile, the marital status has been extinguished, parties.
(b) If, by the law of domicile, the marital status has been extinguished, that fact should be recognised in England1.
The question thus turned solely on the domicile of the parties at the time of the dissolution.
(i) If the parties were, at that date, domiciled in England, the divorce had no effect on their marriage, according to English law.2
(ii) But, if, at that date, the parties were domiciled abroad in a country the law of which recognised that the parties (or one of them) had a power effectively to put an end to the marriage without the need for recourse to the courts, then the exercise of such a power validly dissqlved the marriage in English law3.
(c) For this purpose, it is not relevant for the court to ask either where the marriage was celebrated, or even where the dissolution was effected. Consequently, the English courts have recognised a talaq divorce even though the marriage had been celebrated in England in accordance With the requirements of English law and the non-judicial procedure had taken place in England4.
1. See for example, Qureshi v. Qureshi, (1972) 1 All ER 325.
2. Preger v. Preger, (1926) 42 TLR 281 (283)
3. Har Shafei v. Har Shafei, (No. 2), (1953) Probate 220 (224).
4. Qureshi v. Qureshi, (1971) 1 All ER 325.