Report No. 65
III. Existing Grounds-Domicile
10.10. Section 6 of the Act of 1971-Certain existing rules of recognition to continue in force.-
Since the Act of 1971 was not passed on a clean slate but after the evolution of a number of rules of the common law relating to recognition, and after the enactment of a few statutory provisions pertinent to the question of matrimonial jurisdiction, it became necessary for the U.K. Parliament to decide how far the new Act was to be regarded as exhaustive of the law. The matter was dealt with in section 6, which, as originally enacted,1 was as follows:-
"6. This Act is without prejudice to the recognition of the validity of divorces and legal separations obtained outside the British Isles-
(a) by virtue of any rule of law relating to divorces or legal separations obtained in the country of the spouses' domicile or obtained elsewhere and recognised as valid in that country;
(b) by virtue of any enactment other than this Act:
but save as aforesaid, no such divorce or legal separation shall be recognised as valid in Great Britain except as provided in this Act."
1. For 1973 amendment, see para. 10.13, infra.
10.11. Effect of section 6(a) on common law.-
The effect of clause (a) of the section is to retain those common law rules or recognition which relates to divorces or legal separations-
(i) obtained in the country of the spouses' domicile; or
(ii) obtained elsewhere but recognised as valid in the country of the spouses' domicile.
The first situation covers the proposition laid down in the case of Le Mesurier v. Le Mesurier, 1895 AC 517 (PC) under which a divorce or legal separation is recognised by English Courts if it is granted by a Court of the country where the parties are domiciled. The second situation dealt with in clause (a) covers what is known as the rule in Armitage v. Attorney-General, 1906 Probate 135 under which a divorce or legal separation will be recognised in England if it is recognised as valid in a country where the parties are domiciled at the commencement of the proceedings, even though they were not domiciled in the country whose Court granted the decree.
10.12. Section 6(f) other enactments.-
Besides preserving these two common law grounds of recognition, section 6 preserves grounds of recognition provided for by any other enactment. It is unnecessary to enumerate the enactments of the U.K. Parliament on the subject, but it will be of interest to mention that one of theme1the Indian Divorces (Validity) Act-dealt with divorces granted by Indian Courts. This enactment came to be passed, because Courts in India had been exercising jurisdiction in divorce under the Indian Divorce Act, 1869 over Britons resident in British India, though not domiciled therein. Since, under the rules of private international law, those decrees were not valid, decrees so passed had to be validated by an Act of the U.K. Parliament. It may also be stated that in times of war, special legislation is passed regarding war marriages.2
Having provided for the preservation of some of the common law grounds and of the statutory grounds, section 6, in the last sentence, takes care to abolish all other grounds of recognition. In particular, the grounds of recognition laid down in Travers v. Holley, 1953 Probate 246 and in lndyka v. Indyka, (1969) 1 AC 33 (HL) are no longer valid in England, because the last sentence of section 6 specifically provides that "no such divorce" or legal separation (that is to say), a divorce or legal separation obtained outside British Isles "shall be recognised as valid in Great Britain except as provided in this Act."
1. Indian Divorce (Validity) Act, 1921 (English).
2. Matrimonial Causes (War Marriages) Act, 1944 (English).
10.13. Amendment of 1973 relating to domicile.-
In 1973, the U.K. Parliament1 passed legislation dealing with various aspects relevant to domicile and matrimonial proceedings. For the purposes of the present discussion, it is enough to mention that (i) section 1 of the Act of 1973 empowered the wife to acquire a domicile of her own, thereby amending the general rule, and (ii) in view of this amendment of the general rule as to domicile, it became necessary to revise section 6 of the Act of 1971, relating to recognition of foreign divorces. The amendments are consequential, and need not be gone into in this rapid survey.
1. Domicile and Matrimonial Proceedings Act, 1973 (English).
10.14. Section 7 of the Act of 1971-Re-marriage.-
Various systems of law impose prohibitions against re-marriage after divorce. These prohibitions may affect both parties equally, or may affect only one party. They may last for a limited time, or indefinitely. We are not, at the moment, concerned with prohibitions of a limited character. But we are concerned with the general prohibition against re-marriage which arises from the fact that there is no valid divorce according to the law of the country of nationality. This question usually arises where the parties are divorced by the court of country X, and now wish to re-marry in country Y, but the law of the country of rationality-country Z does not recognise divorce at all.
They are no longer husband and wife, so far as country X is concerned, but they still cannot re-marry, and their previous marriage is regarded as subsisting in country Z under the law of their nationality because, according to the rule of that law, the decree does not dissolve the bond between the two spouses. Such a situation, in fact, arose in an English case.1 Usually, it arises where the law of the country of nationality does not recognise divorce at all and that law is pleaded as a bar.
To deal with such a situation, section 7 of the English Act of 1971 (as amended in 1973), provides-
"7. Where the validity of a divorce obtained in any country is entitled to recognition by virtue of sections 2 to 5 of this Act or by virtue of any rule or enactment preserved by section 6(5) of this Act, neither spouse shall be precluded from re-marrying in Great Britain on the ground that the validity of the divorce would not be recognised in any other country."
The section follows the Convention, which has an article substantially similar.2
Though the section is a bit abstract in its terms, what is intended thereby is that the non-recognition of divorce by a third country is no bar to re-marriage.
1. R. v. Brentwood Superintendent Registrar of Marriages, (1968) 3 All ER 279 commented upon by Chesterman in 32 Modern Law Review 84.
2. Article 11, para. 9.14, supra.
10.15. Section 8 of English Act-Exceptions from recognition-No subsisting marriage.-
In certain circumstances, recognition of a decree of divorce or legal separation would not be desirable. The need for making an exception in respect of recognition may, for example, arise where, according to the law of the forum at which the recognition is sought, there was no subsisting marriage between the parties. It is obvious that if there was no pre-existing marriage according to the legal system of the country where recognition of the divorce is sought, the courts of that country cannot recognise a divorce in respect of such marriage, because to recognise the divorce or legal separation in such cases would amount to an implicit recognition of the marriage.
A rule forbidding recognition in such cases may, in a sense, be treated as stating the obvious. But, it is equally obvious that when the law on the subject of recognition is being given statutory form, a provision should be inserted to ensure that the courts of the country would not recognise a divorce or legal separation if, under the law of the country-which will include such rules of private international law as are applied in that country-there was no marriage in existence.
10.16. Natural justice.-
While the above situation is a technical one, there may be other reasons for refusing recognition. An important category is constituted by circumstances showing that the foreign court granted the divorce or legal separation in violation of the rules of natural justice.
10.17. Public policy.-
Finally, apart from the two situations referred to above, the courts of a country should have jurisdiction to refuse recognition where the divorce or legal separation is inconsistent with its public policy.
10.18. Three situations dealt with.-
These three situations1 have been dealt with in section 8 of the English Act. It reads-
1. Paras. 10.16 and 10.17, supra.
"Exceptions from recognition
8.(1) The validity of-
(a) a decree of divorce or judicial separation granted under the law of any part of the British Isles; or
(b) a divorce or legal separation obtained outside the British Isles; or shall not be recognised in any part of Great Britain if it was granted or obtained at a time when, according to the law of that part of Great Britain (including its rules of private international law and the provisions of this Act), there was no subsisting marriage between the parties.
(2) Subject to sub-section (1) of this section, recognition by virtue of this Act or of any rule preserved by section 6 thereof of the validity of a divorce or legal separation obtained outside the British Isles may be refused if, and only if-
(a) it was obtained by one spouse
(i) without such steps having been taken for giving notice of the proceedings to the other spouse as, having regard to the nature of the proceedings and all the circumstances, should reasonably have been taken; or
(ii) without the other spouse having been given (for any reason other than lack of notice) such opportunity to take part in the proceedings, as, having regard to the matters aforesaid, should reasonably have been given; or
(b) its recognition would manifestly be contrary to public policy.
(3) Nothing in this Act shall be construed as requiring the recognition of any finding of fault made in any proceedings for divorce or separation or of any maintenance, custody or other ancillary order made in any such proceedings."
10.19. Section 8 of the English Act, thus, states three exceptions to recognition, viz:-
(i) Where there was no subsisting marriage to be dissolved, etc.;
(ii) infringement of natural justice;
(iii) manifest clash with public policy.
These are stated to be the only grounds for withholding recognition.
10.20. No subsisting marriage.- The first exception is self-explanatory,1 and has been already dealt with.
1. Para. 10.15, supra.
10.21. Natural justice.-
As to the second exception, it is recognised that circumstances may justify a foreign court in dispensing with service or in substituting service1. Prima facie, if the respondent can prove that he has had no notice, then the decree is not entitled to recognition.
But it will be recognised if-
(i) the foreign court has held that its rules of service have been duly complied with,2
(ii) those rules themselves are not contrary to natural justice,3 and
(iii) the lack of notice is not consequent upon the petitioner's fraud.4-5-6
However, recent dicta, confirmed in Hornett v. Hornett, (1971) 1 All ER 98 (102) suggest that the respondent may be held to have waived his right to attack the validity of a decree-in this case by "himself petitioning for the recognition of the decree",-but presumably also by marrying again.
1. See Macalpine v. Macalpine, (1958) Probate 35 (45).
2. See e.g., Igra v. lgra, 1951 Probate 404; Hornett v. Hornett, (1971) 1 All ER 98.
3. Macalpine v. Macalpine, 1958 Probate 35 (45).
4. Middleton v. Middleton, 1967 Probate 62.
5. Hornett v. Hornett, (1971) 1 All ER 98.
6. As to fraud, see Chapter 17, infra.
10.22. All the circumstances to be considered.-
In considering the materiality or otherwise of notices, all the circumstances have to be considered. In the case of a repudiation, or other unilateral divorce, notice is irrelevant, since notice would not enable the respondent to contest the divorce.1
1. Maher v. Maher, 1951 Probate 342 (344-345).
10.23. Manifestly be contrary to public policy.-
The last exception-the head of "public policy"-is justified by Article 10 of the Hague Convention. The word 'manifestly' in the English section has been criticised as adding nothing.1 In fact, there was a move to delete the word 'manifestly' at the committee stage of the House of Commons, but it was negatived. Since ordre public bulks larger in continental law than "public policy" does in English law. Article 10 of the Convention was, trying to restrict a too liberal application of order public. The Solicitor-General stated2 in the House of Lords: "The expression (manifestly) makes the horse (public policy) a trifle less unruly The word 'manifest' is intended to imply a degree of inherent strength in the horse."
1. See H.L., Vol. 816, Cols. 1552-1555, 1557.
2. H.L. Debates, Vol. 816, Col. 1553 (Solicitor=General).
10.24. As to the circumstances where recognition would be contrary to distinctive English public policy, no definitive list can be complied. Mncalpinel1 illustrates one application of public policy. Meyer (in re:), (1971) 2 WLR 401 was a case of duress. An 'Aryan' wife of a German few had been forced to obtain a decree of divorce against her will. She petitioned to the court for a declaration that the divorce was invalid. The court held the decree to be vitiated by duress-a concept which has been developed in relation to marriage.2
1. Maca1pine v. Macalpine, 1958 Probate 35
2. See Szechter v. Szechter, (1970) 3 All ER 905.
10.25. Section 8(2)(b)-Public Policy.-
Under section 8(2)(b), already referred to1, recognition of the validity of a divorce or legal separation may be refused if "it is manifestly contrary to public policy." Two comments are in order with reference to this clause. In the first place, there is no definition of "public policy", and the power thereby conferred is certainly wide. However, the word "manifestly" cautions the Court against interfering unduly. It is also to be noted, that Article 10 of the Hague Convention provides that "contracting States may refuse to recognise a divorce or legal separation if such recognition is manifestly incompatible with their public policy (order public) ." Such a clause is found in many of the international conventions on the subject of private law; for example-Convention on Alimentary Obligations (15th April, 1958, Article 2), Convention on Adoption (15th November, 1965, Article 15) and so on.
But it should be pointed out that the expression "order public" refers rather to the continental concept of ordre public than to the common law concept of public policy. The width of the continental concept, mentioned in the convention, is somewhat narrowed down by Article 6 of that Convention which, inter alia, provides that the State in which recognition is sought, shall not review the merits of the decision, subject to the provisions of Article 10. In the English section (section 8), on the other hand, only the expression "public policy" is used.
1. Para. 10.23, supra.
The other point to be noted with reference to section 8(2)(b) of the English Act is that it is silent an the question of fraud-except that fraud could fall within 'public policy'. We are of the view that it is desirable that it should be specifically dealt with. It may be mentioned that fraud is specifically mentioned in section 13 of the Code of Civil Procedure, 1908. We may also state that it figures in the Supreme Court case.1 We shall revert to this topic later.2
1. Para. 1.1, supra,
2. See Chapter relating to fraud, infra, (Chapter 18).
10.27. Incidental order.- Under section 8(3) of the English Act, certain incidental orders are not recognised.