Report No. 65
VI. Uncertainty Under 1971 Act
8.17. Debates in Hague Conference.-
Thus, the position regarding overseas extra-judicial divorces is uncertain, so far as their recognition in England is concerned. Article 1 of the Hague Convention refers to the recognition of divorces and legal separations "which follow judicial or other proceedings, officially recognised in the State where the divorce was obtained." The use of the phrase "other proceedings" appears in the first original draft convention, and it is stated in the commentary thereon that1
"the term proceedings shows that only those forms of the severing of marital bonds fall within the Convention, where it is an official authority, independent of the parties, that has acted. The officers, e.g. of a notary public, who would act at the request of the husband only and would merely take official notice of the repudiation of the wife, would be removed from the Convention."2
However, a number of States were uneasy as to the scope of the requirement of "proceedings", and specially whether that requirement would permit recognition of Jewish and Muslim divorces3. The United Kingdom proposed an amendment to clarify the situation so that the Convention would apply "whatever be the forms or methods of divorce which the State provides or permits."4
The United Kingdom amendment was, however, rejected although doubt was expressed as to whether some forms of divorce, for example, 'talaq' divorce would fall within the original draft.
1. Some of the material as to Article 1 of the Convention is taken from P.M. North Extra-Judicial Divorces (1975) January 91 LQR 36, 48 to 50.
2. Proceedings of 11th Session, Hague Conference (1970), pp. 19, 58.
3. Proceedings of 11th Session, Hague Conference (1970), pp. 76, 81, 83.
4. Proceedings of 11th Session, Hague Conference (1970), p. 94.
8.18. Debates in House of Commons.-
During the debates on the Recognition of Divorces and Legal Separations Bill, 1971, implementing the Hague Convention, concern was expressed in the House of Commons, both in Committee1 and on the Report stage2, over the meaning of the words "other proceedings" in section 2 of the Act of 1971. Amendments were3introduced to make more specific provisions for talaq and other informal divorces. The main cause for concern was whether the use of "proceedings" in other sections of the Act4 did not pre-suppose:
"Some sort of quasi-judicial nature and involve some kind of decision by some person or tribunal in regard to contending parties, or parties that may be able to contend, rather than simply the pronouncement of a divorce by one party to the marriage."5
1. Standing Committee B, June 22, 1971, Cols. 3-10.
2. H.C. Debates, Vol. 821, Cols. 165-171 (12th July, 1974).
3. E.G. Mr. Silkin Act or proceeding.
4. Sections 3, 4, 5, 8.
5. Standing Committee B, June 22, 1971, Col. 4.
8.19. "Single act or event" whether covered by "other proceedings".-
A further problem that was discussed during the debates on the Bill was whether "other proceedings" was an apt phrase to cover a divorce by a single act or event, as in some cases of talaq, rather than the more usual case of a sequence of event1. However, these objections were not accepted by the then Solicitor-General2 who pointed out that the Act is not intended to afford recognition to all informal divorces, but only to those which have the nature or quality of an official act3. Mr. Silkin4 proposed the insertion of words to make it read "judicial or other act or proceedings."
But the Solicitor-General said5, "I suggest that the inclusion of the words 'or other proceedings' at least makes it plain, first of all, that the other proceedings need not themselves be judicial, as I think the hon. and learned Gentleman accepts. "It follows that the other proceedings can include administrative proceedings, including possible registration in a Government office or divorce by legislation. It can also include proceedings which do not involve the intervention of an official; a formal series of steps following a strict legal pattern such as those taken in a talaq divorce, where the official plays no part and where no official step is necessary to register them."6
The hon. and learned gentleman's point is so far so good, but "proceedings" implies a sequence of measures, a degree of formality and bureaucracy and judiciality which could result in excluding from the Bill some single act taken by the parties resulting in divorce by the country in which that act is being taken. The difficulty is that if one takes a single step like that, an act as opposed to proceeding6, or even a proceeding-which was one of the alternatives I thought of at one time-one might arrive at a proceeding so informal as to make it difficult to bring it within the frame-work of this kind of recognition. The Bill, and any Bill of this kind, must depend on the possibility of identifying a particular moment of time jurisdictionally at which the act or proceeding can be identified between the act and the jurisdiction under whose law the matter would be valid."
1. H.C. Debates, Vol. 821, Cols. 167-168 (12th July, 1974).
2. Sir Geoffrey Howe.
3. H.C. Debates, Vol. 821, Cols. 169-170 (12th July, 1974).
4. Mr. Silkin K.C., now Attorney-General.
5. H.C. Debates, Vol. 821, Cols. 169-170.
6. Emphasis added.
8.20. Intervening at this stage, Mr. Silkin said:
"Would the informality matter so long as the country concerned accepted the validity of the divorce or legal separation resulting from it? Is not that the key to the intent of the Convention?"
To this, the Solicitor-General replied-
"I hesitate to go back to analysing the intent of the Convention, but in terms of finding the key to what is workable and acceptable in this country the point must be that if we are providing for a quick, automatic machinery for the recognition, which is really what the Clauses do, it should be possible to identify quickly and automatically the nature of the act or proceedings which qualified for recognition and be satisfied that at the time the act or proceeding was taken or was taking place the necessary jurisdictional link of nationality or whatever it may could be fulfilled."
8.21. The Solicitor-General elaborated the point in these words-
"If one looks at that in the context of the word 'act', for example, rather than 'proceedings' and then at a judicial act, one immediately runs into possible difficulties in deciding whether the judicial act in question is the service of the petition or the granting of the decree nisi or of the decree absolute. One is not then able to identify it with any clarity because under clause 3 as it stands we have at the date of institution of the proceedings......"
"If we insert
"......at the date of the act or of the institution of the proceedings......"
we become a little uncertain on that ground."
The Solicitor-General wound up his comments by saying-
"I suggest to the hon. and learned Member and to the House that the answer to his problem is to say that when we reach a proceeding or act as informal as that which he has in mind, the parties would have to rely on the provisions of Clause 6 which enables a divorce and legal separation which is valid by virtue of a rule of law arising from the domicile of the parties still to be recognised in this country, but it requires it to go through an admittedly rather more complex means of proof and establishment of recognition. But that is the long stop and the safety net, which is sufficient to deal with this problem."
The matter rests there, so far as interpretation of the Act of 1971 is concerned.
8.22. Ambiguity of words "or other proceedings"-Need to cover extra-judicial divorces.-
The above discussion would show that the words "or other proceedings" are not clear enough to cover extra-judicial divorces-at least those divorces which do not take place before an authority.