Report No. 65
II. Main Provisions
10.2. General provisions in the English Act as to recognition.-
As respects recognition in Great Britain of the validity of overseas divorces and legal separations, the first provision is contained in section 2 of the Act, which provides that sections 3 to 5 of the Act snail have effect, subject to section 8, in regard to divorces and legal separations which-
(a) have been obtained by means of judicial or other proceedings in any country outside British Isles; and
(b) are effective under the law of that country.
10.3. Section 3(1)-The grounds for recognition mainly dealt with in section 3.-Under section 3(1), the validity of the overseas divorce or legal separation shall be recognised if, at the date of the institution of the proceedings in the country in which it was obtained-
"(a) either spouse was habitually resident in that country;
(b) either spouse was a national of that country."
It may be noticed that this sub-section does not speak of domicile. That is dealt with separately.1 It may also be pointed out, that the habitual residence or nationality of either spouse is sufficient to confer competence on the foreign court, whose decree is now the subject-matter of recognition. This represents the most important departure from the conventional English rule under which, subject to certain additions or qualifications, the test of domicile of both the parties is the test for the recognition of foreign decrees.2
1. Paras. 10.4 and 10.10, infra, section 3(2).
2. Chapter 7, supra.
10.4. Section 3(2) of the Act of 1971.-
It should be pointed out in this connection, that section 3(2) of the Act of 1971 provides that in relation to a country, the law of which uses the concept of domicile as a ground of (domestic) jurisdiction in matters of divorce or legal separation, sub-section (1)(a) of section 3-that is to say, the test that either spouse must be habitually resident in the foreign country1-shall have effect as if the reference to habitual residence included a reference to "domicile within the meaning of that law".
Broadly stated, the effect of this provision is that if the foreign country itself adopts the test of domicile as the test of jurisdiction in granting divorces for its own internal purposes, a decree of court of that foreign country-being a foreign country in which either spouse was domiciled at the date of the institution of the proceedings-would be recognised in England. It is obvious that in part, this sub-section preserves the English 'common law' rule of recognition on the ground of domicile, but, in part, it modifies that rule, since it is enough that either spouse is domiciled in the foreign country. It is not necessary that both2 must be so domiciled.
1. Para. 10.3, supra.
2. Para. 10.3, supra.
10.5. Section 3(3) of the Act of 1971, country comprising various territories.-
It would be noticed that the provisions in the English Act relating to grounds for recognition, which have been so far summarised, speak of "the country" in which the decree was obtained and of "the law" of the country. Now, as is well-known, there are countries where, by reason of the federal structure, the various territories forming part of the country are governed by different systems of law in matters of divorce or legal separation. Provision had to be made for such countries, and section 3(3) of the Act of 1971 provides that "in relation to a country comprising territories in which different systems of law are in force in matters of divorce or legal separation, the foregoing provisions of this section (except those relating to nationality) shall have effect as if such territory were a separate country."
10.6. Section 4 of the Act of 1971-(i) Cross proceeding and (ii) Legal separation converted into a divorce.-
Sectiort 4 or the Act of 1971 contains two provisions. Sub-section (1) provides that where there have been cross-proceedings, it is sufficient if the jurisdictional tests mentioned in sections 3(1), (a) and (b), are satisfied either as regards the original proceeding or as regards the cross proceeding, and it is immaterial which of the two led to the decree of divorce or legal separation. This is not the precise language of the sub-section, but it is its gist is stated in simple terms.
To take a hypothetical case, if-(i) the wife applies for divorce in a jurisdiction where she was habitually resident, and (ii) later, the husband, who is neither a resident of that country nor a national of that country nor domiciled in that country, brings cross proceedings for divorce, and (iii) the wife ceases to be habitually resident in that country, the decree in the husband's favour, if ultimately passed, will nevertheless be recognised in England, by virtue of section 4(1). The fact that the wife was habitually resident at the time of her petition, serves to validate the decree on the husband's proceeding, even though, for the husband's proceeding, the jurisdictional test is not satisfied in this case.
Section 4(2) enacts that where a legal separation, the validity of which is entitled to recognition by virtue of section 3 or section 4(1), is converted, in the country in which it was obtained, into a divorce, the validity of the divorce will be recognised whether or not it (the divorce) would itself be entitled to recognition by virtue of those provisions. Stated in simple language, this sub-section provides that in such cases the jurisdictional criteria laid down in section 3 need be satisfied only at the date of the institution of the proceedings for legal separation in the foreign country, and it is immaterial that, at the time when the subsequent proceedings for converting the decree of separation into divorce are instituted, the parties do not satisfy any of the tests laid down in section 3.
This provision is intended to apply to decrees of those countries under whose legal systems a separation can be automatically converted into a divorce at the end of a prescribed period. An example usually given of such a country is Denmark and it may be useful in relation to Belgium and France also.
10.7. Section 5 of the Act of 1971-Proof of facts relevant to recognition.-
The question can arise whether the finding of fact on the basis of which the foreign court assumed jurisdiction is binding on the court in which the question of recognition of the decree of divorce or legal separation passed by the foreign court arises. Such a problem, in fact, arose in the United States in the case of Williams v. North Carolina, No. 2 (1945) 325 US 226.
In that case, the question arose whether a decree of divorce granted by a court in Nevada, was entitled to full faith and credit in North Carolina. Under the law, as applied by the courts of North Carolina, the decree would be entitled to recognition if it was based on domicile in the State of Nevada. But the question that fell to be considered was whether the finding of the Nevada court, of facts amounting to domicile, was itself binding on the North Carolina court. It was held that it was not conclusive.
Previously, there was some confusion in the U.S.A. on the subject in relation to sister State judgments. The confusion had stemmed from the famous case of Haddock v. Haddock, (1906) 201 US 562. which delimited earlier cases on jurisdiction and full faith and credit. In the Haddock case, a husband had secured a divorce at his new domicile in Connecticut, after wrongfully deserting his wife at their last common domicile, New York, where the wife's domicile remained. The United States Supreme Court held, that New York need not give any faith and credit to the Connecticut decree, though the Supreme Court did not declare that the decree was void.
This created some confusion.1 The confusion persisted until 1942 when, in the first Williams v. North Carolina, (1942) 317 US 287. This was a prosecution for illegal cohabitation in North Carolina with a purported second spouse, after Nevada divorce from a first spouse. the United States Supreme Court expressly overruled the Haddock decision and declared that an ex parte divorce decree granted by a State which was the domicile of the suing plaintiff was not only valid under the due process clause, but was also entitled to full faith and credit in sister States.
The second Williams v. North Carolina, (1945) 325 US 226. In the same prosecution, North Carolina found that the plaintiff had no Nevada domicile and conviction was sustained. See Rice v. Rice, (1949) 336 US 674 held that collateral enquiry was permissible to determine whether the plaintiff securing the ex parte decree was actually domiciled in the State granting it. There were, however, some dissenting judgments. This case has not been followed in Australia in cases relating to sister State decrees.
1. Baale Haddock Revisited, (1926) 39 Harvard Law Review 417.
10.8. English Act.-
In England, such problems are dealt with by section 5(1) of the Act of 1971. Section 5(2) of the Act makes it clear that "finding of fact" includes, in this context, the finding about habitual residence or domicile or nationality.
Section 5 reads-
Proof of facts relevant to recognition
5.(1) For the purpose of deciding whether an overseas divorce or legal separation is entitled to recognition by virtue of the foregoing provisions of this Act, any finding of fact made (whether expressly or by implication) in the proceedings by means of which the divorce or legal separation was obtained and on the basis of which jurisdiction was assumed in those proceedings shall-
(a) if both spouses took part in the proceedings, by conclusive evidence of the fact found; and
(b) in any other case, be sufficient proof of that fact unless the contrary is shown.
(2) In this section "finding of fact" includes a finding that either spouse was habitually resident or domiciled in, or a national of, the country in which 6e divorce or legal separation was obtained; end for the purposes of sub-section (1)(a) of this section, a spouse who has appeared in judicial proceedings shall be treated as having taken part in them."
10.9. Mixed finding-Section 5(2) of English Act.-
It is well-known that the findings of a court often involve mixed questions of fact and law. The precise finding that a spouse is habitually resident or domiciled in, or a national of, the country, could be a mixed finding of fact and law, inasmuch as the attribution to a person of domicile, nationality, or habitual residence, may involve not only an inference from the facts, but also a number of legal conclusions. Section 5(2) of the English Act of 1971 has the effect of making the whole finding of the foreign court conclusive evidence or sufficient proof, as the case may be. It avoids any objection being raised that the precise finding as to domicile was not one of pure fact.