Overseas Divorces - The Transnational Divorce Trap

A recent instruction received by the family law team at Black Antelope Law demonstrated that there remains a lack of widespread public knowledge of the circumstances in which an overseas divorce will be recognised in transnational divorce cases. The “transnational divorce trap” is most encountered by individuals who are part of the Islamic and Jewish communities, but it is by no means limited to them.

What is a Transnational Divorce?

Put simply, this is where proceedings for a divorce are initiated in one country and finalised in another. The leading cases in this area have all involved situations where the divorce was initiated in England and finalised abroad.

In Islamic cases, this will involve the talaq divorce: the right of a husband to unilaterally to renounce his wife without showing cause and without having to go to court by announcing talaq three times. The divorce then becomes effective on a notice being sent to the chairman of the local union council and to the wife.

In Jewish cases, this will involve a Get of divorce: a writ of divorce in which the husband expresses his unqualified intention to divorce his wife and sever all ties with her. The Get is prepared by a certified expert and delivered to the wife.

The Approach of the Courts

The first case to consider whether an overseas transnational divorce was capable of being recognised in England and Wales was the House of Lords decision in Re Fatima [1986] A.C. 527. In that case, Ms Fatima was a Pakistani national who was engaged to a Pakistani national who was resident in the UK. Ms Fatima’s fiancé, had been married in Pakistan in 1968 and believed his marriage had been effectively dissolved. However, on Ms Fatima’s arrival in England to marry her fiancé, the immigration officer was not convinced that a divorce recognised in the UK had taken place. Furthermore, as a result of the immigration officer having taken the view that the issue could not be rectified within a reasonable period of time, Ms Fatima was refused leave to enter, a decision which she appealed.

The issue before the House of Lords was the appropriate construction of ss.2 & 3 of the Recognition of Divorces and Legal Separations Act 1971, which the court determined had to be read together. Lord Ackner ruled that reading the two provisions together posed two essential questions:

1. Was the talaq divorce obtained by proceedings solely in Pakistan, or

2. By proceedings partly in England and partly in Pakistan?

If the answer to the question above is (2), did the talaq divorce qualify for recognition under the 1971 Act or was it a condition that the proceedings needed to completely outside the UK?

The court rejected the argument that a talaq was merely a manifestation of the wish to divorce. Instead, it found that the pronouncement of talaq was the first step in the relevant proceedings for the purpose of s.2 Divorces and Legal Separations Act 1971. Since in this case, the talaq divorce had been instituted in the UK and not in Pakistan, where the divorce was obtained, it was necessary for them to consider question two (on the basis of the House of Lords decision in Quazi v Quazi [1980] AC 744, it was not in dispute that a finding under 1(a) would mean the divorce was recognised in the UK).

On question two, their Lordships held that reading the two provisions together, there “must be a single set of proceedings which have to be instituted in the same country as that in which the relevant divorce was ultimately obtained”. As a result, the appeal was dismissed.

The second major case to consider the transnational divorce was Berkovits v Grinberg v (Attorney-General intervening) [1995] Fam 142. In the case, the husband and wife were both Israeli citizens who had married in Israel. The husband later became resident and domiciled in England. Several years later, the husband wished to remarry and had a Jewish get of divorce written in England and delivered to the wife in Israel. Although the dissolution of the marriage was effective under the law of Israel, the Registrar-General of England advised that the divorce would not be recognised in the UK.

As a result of this advice, a declaration was sought by a Rabbi and ecclesiastical judge (Dayan Berkovits), that under s.55 Family Law Act 1986, the Get would be recognised as a valid divorce obtained in Israel. The Grinbergs, the Respondents, did not participate in the proceedings. However, the Attorney-General appeared as an Intervener.

It was accepted by the parties to the case, that a divorce obtained via a Get is a divorce “by means of proceedings” as defined by s.46(1) Family Law Act 1986.

The court found that although it was the handing of the Get to the wife which actually dissolved the marriage under Israeli law, the writing of the Get was itself a matter of considerable importance and formality and therefore was undoubtedly a step in the proceedings.

The court considered s.45 & s.46 Family Law Act 1986, the statute which replaced 1971 Act as governing the basis for the recognition of overseas divorces, annulments and legal separations:

"Recognition in the United Kingdom of overseas divorces, annulments and legal separations.

45. Subject to sections 51 and 52 of this Act, the validity of a divorce, annulment or legal separation

obtained in a country outside the British Islands (in this Part referred to as an overseas divorce,

annulment or legal separation) shall be recognised in the United Kingdom if, and only if, it is entitled

to recognition - (a) by virtue of sections 46 to 49 of this Act, or (b) by virtue of any enactment other

than this Part.

"Grounds for recognition.

46(1) The validity of an overseas divorce, annulment or legal separation obtained by means of

proceedings shall be recognised if - (a) the divorce, annulment or legal separation is effective under

the law of the country in which it was obtained; and (b) at the relevant date either party to the marriage

- (i) was habitually resident in the country in which the divorce, annulment or legal separation was

obtained; or (ii) was domiciled in that country; or (iii) was a national of that country. . . . (3) In this

section 'the relevant date' means - (a) in the case of an overseas divorce, annulment or legal separation

obtained by means of proceedings, the date of the commencement of the proceedings; . . ."

It was clear in this case that the criteria in s.46 of the 1986 Act was satisfied. The issue was whether s.45 of the 1986 Act was satisfied, i.e., was the Get obtained in Israel an “overseas divorce”? The interpretation of ss.2 & 3 of the 1971 Act in Re Fatimadid not help as the wording in the two pieces of legislation were distinct. The court therefore had to decide was whether Re Fatimaremained good law following the changes made by the Family Law Act 1986.

In the end, the court determined the answer was to be determined by way of statutory construction. It was noted and accepted by all parties that it had not been the intention of Parliament in passing the 1986 Act to alter the law relating to transnational divorces (as evidenced by the reports in Hansard), although Dayan Berkovits’ position was that by legislative oversight, the effect of the 1986 Act was to overrule the decision in Re Fatima.

Ultimately, the court found that it was not straining language unduly to read "obtained by means of proceedings" and "obtained in a country outside the British Islands" where they occured in the same sentence as meaning "obtained by means of proceedings in a country outside the British Islands."; that the reference to "the date of the commencement of the proceedings" could only refer to the proceedings by which the divorce was obtained; if there was only one set of proceedings, then the "habitual residence" requirement must be linked geographically not only to the country in which the proceedings were commenced, but also to the country in which the divorce was obtained. It was considered that this interpretation gave effect to the intention of Parliament.

The third and most recent consideration of transnational divorces, is the Court of Appeal decision’s in Parveen v Hussain [2022] EWCA Civ 1434.

The facts of that case can be briefly summarised. The wife was a national of Pakistan had had married her first husband (H1) in Pakistan. H1 was resident in England and after the marriage, had returned to live in England. Several years later, H1 pronounced talaq in England by letter. A “divorce certificate” was then provided by a mosque in England and sent to the wife and relevant authority in Pakistan. The relevant authority later issued a certificate stating the divorce was effective. As a result, under the law of Pakistan, the wife was permitted to marry her second husband (H2).

The parties married in Pakistan and after several years, the wife came to England to live with H2. Ten years later, H2 started divorce proceedings and obtained a decree nisi. However, then later applied for the decree nisi to be rescinded by applying for a nullity petition on the basis that the wife remained married to H1 at the date of her marriage to H2.

The Court of Appeal found that while under English law, the wife’s previous divorce was a transnational divorce that was not entitled to recognition under the Family Law Act 1986 applying Re Fatima, s.45 Family Law Act 1986 did not state that if a divorce was not recognised, this meant a party would lack the capacity to remarry.

Since there was no previous decision on this issue, the Court considered the answer could be found in s.14 Matrimonial Causes Act 1973, which deals with marriages governed by foreign law or celebrated abroad under English law and states that the validity of marriage should be decided in accordance with the rules of private international law. Determining whether the marriage was void required deciding whether priority should be given to the rule governing capacity to marry or that governing the recognition of foreign divorces.

Interestingly, the court decided it was not desirable to lay down a general rule of priority and that a flexible approach should be adopted: the outcome should be as justice required in the circumstances, but that the court should give weight to the general policy objectives of upholding the validity of a marriage to avoid creating a "limping" marriage, i.e. a marriage treated as in existence in one jurisdiction but not another.

On the facts of this case, it was held that justice meant that the question of the wife's capacity was governed by the law of Pakistan. The question of the validity of her previous divorce was also to be determined by the law of Pakistan, under which it was effective to determine her first marriage. That meant that the wife had capacity to marry H2 and that the marriage was not void under s.11(b) of the 1973 Act. In arriving at this decision, it was clear that the court took into consideration the fact that at the time of her first marriage, she was domiciled and lived in Pakistan. Taking into account all the circumstances, there was no reason why she should have been expected to obtain legal advice in England and, even if she had been able to do so, to commence divorce proceedings in England.

Discussion

Although the right decision was arrived at in Parveen, the decision of the court to take a flexible approach to the priority of recognition will lead to continued litigation in cases where it is difficult to say what justice requires. For example, the decision may have been different if the wife had been aware of the law in England, even if the laws in Pakistan were different. If the wife had lived in England and the parties married in Pakistan and then one or more of the parties moved abroad, this may have made the answer a little more difficult to establish. It is noted that at the time of writing, the UK Home Office’s policy guidance document “Family Policy:
Partners, Divorce and Dissolution” version 4 has yet to updated in light of the decision in Parveen.

Ultimately, if you have married abroad and now live in a separate legal jurisdiction from your partner who you wish to divorce and/or believe you are divorced overseas and wish to remarry in England and Wales, it would be wise to take independent legal advice to avoid any unpleasant surprises. At Black Antelope Law, we have an experienced private family team specialising in divorce, including international divorce disputes, who can assist you, alongside our specialist immigration law team where relevant. Do not hesitate to give us a call.

Simao Paxi-Cato & Jessica Pinches