Effect of England on Transnational Divorce - Essay Example

? “To decide the effect in England of a transnational divorce it is necessary to distinguish divorces obtained by proceedings from those obtained otherwise than by means of proceedings” (Clarkson and Hill, 2011). Evaluate the significance of the above statement. 1. Introduction One of the key challenges of legislators worldwide is to identify the precise elements on which local jurisdiction would be based. In many cases, the simultaneous existence of elements related to local and foreign jurisdiction set barriers in the effective intervention of courts. The problems related to such cases are analyzed in this paper; reference is made specifically to the transnational divorces in UK and their recognition in the context of British law. Due to the complexity of the relevant processes, two different modes of such divorces have been developed in the British law: the transnational divorces based on proceedings and those that can be developed otherwise than by means of proceedings. The literature published in regard to this subject highlights the following issues: existing British law in regard to transnational divorces is not so clear; there are provisions setting the general terms of the relevant processes but the options available are differentiated, leaving to the court the right to decide on the potential validity of a divorce for the English law and the intervention of the English courts in a dispute related to foreign divorce. This phenomenon is particularly clear in the case law developed in regard to this issue. In any case, transnational divorces are acceptable in the context of British law, being based mostly on the principle of recognition, but their effects are not standardized, being depended on the conditions of each case, as these conditions reflect the relationship of each of these cases with the English law. The fact that the trends developed in Britain in regard to the acceptance of the transnational divorces as valid are differentiated, do not influence the power of the English courts to decide on the validity of these divorces, no matter if the terms of the foreign law, to which the parties are related, are met. 2. Transnational divorce in UK 2.1 Transnational divorce in UK – characteristics and challenges In order to understand the effects of a transnational divorce in the context of the British law, it would be necessary to refer primarily to the characteristics of the particular type of divorce, as developed not only in UK but also worldwide. A divorce is characterized as transnational when the acts involved, meaning the various processes required for the acquisition of the relevant certificate, have taken place in two different countries (O’Brien and Smith 1999, p.487). In accordance with Wray (2011), the transnational divorce is distinguished by the common divorce at the following point: in the transnational divorce part of the processes for the issue of the divorce need to be completed in UK and part of them have to be developed in another country (Wray 2011, p.83). In other words, transnational divorces are necessarily related to the law of different countries. In Britain, the requirements of a transnational divorce are incorporated in three different legislative texts – the Recognition of Divorce and Legal Separations Act 1971, the Domicile and Matrimonial Proceedings Act 1973 and the Family Law Act of 1986. It should be noted that the above texts do not refer directly to the case of ‘transnational divorce’ but they list the terms under which a divorce of such characteristics can be valid in the context of the British law. In practice, the identification of the terms of validity of a transnational divorce is quite difficult. This problem is particularly common in England where a series of problems has appeared in regard to the successful completion of the relevant processes, a fact that reveals the need for the review of the relevant legislation (O’Brien and Smith 1999, p.487). One of the most important problems related to transnational divorces in UK is the following one: the local laws related to divorce set a series of barriers and restrictions in regard to the acquisition of a divorce certificate when there are elements related to foreign jurisdictions (Dicey, Collins and Morris 1987). For example, the Domicile and Matrimonial Proceedings Act 1973 sets certain restrictions in regard to the potentials of UK residents ‘to obtain a divorce’ (O’Brien and Smith 1999, p.487). These restrictions can be identified mainly in the s.16 of the above legislative text and ‘are repeated in the s 44.1 of the Family Law Act of 1986, which states that ‘…no divorce or annulment obtained in any part of the British Islands shall be regarded as effective unless granted by a court of civil jurisdiction’ (Family Law Act 1986, s.44.1, in O’Brien and Smith 1999, p.487). The above provision describes the overall position of English law towards the extra-judicial divorce, which is actually not recognized in UK (Yilmaz 2005, p.79). It does not prohibit the right of individuals who are related to foreign jurisdiction to proceed to a divorce. 2.2 Transnational divorce in UK - effects 2.2.1 Transnational divorce obtained by proceedings The right of the parties to seek for a divorce through proceedings can be identified in the Family Law Act 1986. More specifically, in section 46.1 of the above Act it is noted that the transnational divorces based on proceedings are valid in the context of the British law under the terms that the divorce meets the requirements of the country in which it was obtained and that both the parties were related to that country, as a habitual resident or domicile or national (s.46.1 Family Law Act 1986). At a first level, the terms of a transnational divorce can be identified in the Recognition of Divorce and Legal Separations Act 1971, which gives the right to people living in UK but domiciled in another country to take a divorce using the law of the country of their domicile (O’Brien and Smith 1999, p.487). This trend has been made clear in the case of Qureshi v Qureshi (1971); in the above case, none of the parties was British, in fact the husband was Pakistani and the wife was Indian. They were married through a civil ceremony in Britain (Qureshi v Qureshi 1971). Their case was heard before the Pakistani High Commission and the certificate of the divorce was released after the declaration of Talaq, as ordered by the Islamic law (Qureshi v Qureshi 1971). However, the husband violated the agreement in regard to the payment of dower to his wife; the latter tried to cancel the divorce bringing the case before the English courts. The English courts held that the divorce has been valid and the relevant decision was justified by referring to the principle of recognition, which was characterized as a critical part of the English matrimonial law (Qureshi v Qureshi 1971). The decision of the court in regard to the above case can be characterized as justified taking into consideration the following fact: in the context of the Matrimonial and Family Proceedings Act 1984, the potentials of an English court to intervene in financial disputes in regard to foreign divorces are limited (O’Brien and Smith 1999, p.487), though it would be quite difficult to identify the criteria that could fully justify the intervention of English courts in such cases. However, the above decision sets a critical dilemma: a person living in UK but domiciled elsewhere can use the provisions related to recognition, as explained above, in order to avoid the British laws. It should be noted that divorces that are based on processes developed entirely abroad are accepted as valid by the British law, in accordance with ‘s.3 of the Recognition of Divorce and Legal Separations Act 1971 – as amended by s.46.1 of the Family Law Act 1986’ (Wray 2011, p.84). At this point, a problem has appeared in regard to the following issue: can the divorces based on Talaq pronounced in UK are valid (Wray 2011, p.84), if the case has been then brought before the foreign court, i.e. the court of domicile? The English courts have extensively examined the particular issue in the case of R v Ghulam Fatima (1986). In the context of the above case, the validity of the divorce of three Pakistani women was set under examination, so that the right of these women to enter the UK to be judged (Wray 2011, p.84). In this case, the courts, both the Court of Appeal and the House of Lords, held that the Talaq has been a critical part of the proceedings and for this reason, which should not be developed ‘entirely in Pakistan’ (Wray 2011, p.84). The above decision was negatively criticized, as being opposed to the UK laws which accept a divorce based solely on processed developed abroad, in case that all terms of the foreign law are met (Wray 2011, p.84). On the other hand, the above decision was considered as covering the unfairness of the relevant provisions, as they have been revealed in the case of Qureshi v Qureshi, analyzed earlier. Indeed, in the case of R v Ghulam Fatima (1986) the English Courts used their power to decide on the validity or not of a transnational divorce on the basis that a critical social issue should be addressed: rich individuals could travel abroad in order to get a divorce, where those of low income would not be able to develop their claims in regard to the particular cases (Wray 2011, p.84). In any case, the case law developed in regard to transnational divorces proves that in the case of transnational divorces the English courts examine carefully the intension of the parties to avoid the application of English laws. For example, in the case of Chaudbury v Chaudbury (1984) the English courts involved in the case held that the use of bare Talaq as the basis of a transnational divorce couldn’t be accepted when the terms of the English law in regard to the validity of transnational divorce – both a proceedings divorce and a non-proceedings divorce – are not applied. Indeed, in the above case, both the husband and wife were Pakistani. The marriage had taken place in Pakistan and the divorce was based on a bare Talaq given by the husband to the wife (Chaudbury v Chaudbury 1984). The court noted that the above divorce is not valid because it does not meet the requirements of a proceedings divorce (as stated in the Recognition of Divorce and Legal Separations Act 1971, while it is neither a non-proceedings divorce, not being based on the Muslim Family Laws Ordinance (1961), which do not recognize the bare Talaq as a means for developing a valid divorce process (Chaudbury v Chaudbury 1984). In the above decision, it is explained that even if the husband has issued to his wife a formal Talaq, again the English court would not be obliged to declare the divorce as valid, taking into consideration the fact that one of the parties may have traveled abroad just for avoiding the English laws on divorce (Chaudbury v Chaudbury 1984, and Sulaiman v Juffali 2001). In the same context, in the case of Berkovits v Grinberg (1995) the court held that the divorce under examination was not valid; the judge referred to the terms of the s.46.1 of the Family Law Act and held that since part of the process has been developed in England – writing of a ‘ghet’, a form of divorce in Jewish tradition – the divorce obtained in Israel would not be accepted as valid. 2.2.2 Transnational divorce obtained otherwise than by means of proceedings In the context of the Recognition of Divorces and Legal Separations Act 1971, a transnational divorce in the UK could be accepted even if no formal proceedings are held. Indeed, in the s. 8 of the above Act it is noted that a transnational divorce would be regarded as valid only under the terms that it would be aligned with the requirements of the foreign country, in which the divorce was issued (Baarsma 2011). In the above form, the specific Act could hide many risks in regard to the potential acceptance of ‘bare Talaq’ as the basis of a valid divorce (Pearl 1987, p.226). However, the relevant provisions, referring to non - formal proceedings, have been amended, correcting the relevant gaps, as also highlighted in the case law presented above, through the Domicile and Matrimonial Proceedings Act 1973. The above legislative text states that transnational divorces based on non-formal proceedings or other processes, as for example, the bare Talaq on which divorces in Pakistan can be based, are valid (Nichols 2011). However, it is noted that the above term exists only in cases that both parties, meaning both the husband and the wife are residents of the foreign country, at least for the entire year before the divorce (Murphy 2005). Otherwise the English courts may not recognize the transnational divorce, which is based solely on Talaq, as valid. The specific trend in regard to the recognition of the transnational divorces which have been obtained otherwise than by means of proceedings is further developed in the provisions of the Family Law Act 1986, which sets, in s 46.2 a series of terms under which such divorces can be accepted as valid by the British law. For example, it is necessary for the divorce to meet all the requirements of the laws of the country in which it was obtained (s. 46.2(1) Family Law Act 1986); most important it is necessary that neither the husband nor the wife are habitual residents in UK for the entire year before (s. 46.2(2) Family Law Act 1986), meaning probably one year before the date that the application for the divorce was submitted, since the specific time point is not further explained. The Domicile and Matrimonial Proceedings Act 1973 provisions have been critical for the identification of the validity of transnational divorces in UK. For example, the transnational divorces based on Talaq may be considered ‘as not valid even if the relevant terms of the law of the parties’ domicile are met’ (Wray 2011, p.84) – under the terms that the husband and the wife have been residents of UK for the last year before the divorce, as explained above. Particular reference is made to this type of transnational divorces since they are likely to be the most common forms of transnational divorces in UK, as proved through the literature presented above. 3. Conclusion The family law in Britain has been aligned with the country’s social conditions. Indeed, the increase in the country’s immigrants has set concerns in regard to the effective management of family disputes. Referring especially to the case of the transnational divorces it would be noted that the provisions promoted by British legislators in regard to such issues are as effective as possible. Indeed, it cannot be doubted that the problems related to the potential conflict of laws can be many, especially if the terms set by one of the countries involved cannot secure the equality and fairness of law in the other country. In any case, the improvement of the law regarding the transnational divorces in England has helped towards the increase of effectiveness of the relevant provisions. Moreover, the review of the case law developed on this issue has proved that English courts do not hesitate to use their power for ensuring the application of the general rules of law, meaning especially the equality towards the law, as in the case of Chaudbury v Chaudbury discussed above. As for the effects of transnational divorces based on proceedings compared to those that have been obtained otherwise, no particular difference seems to exist, especially since the introduction of the Family Law Act of 1986. The excess freedom of parties to make use of non-formal means for obtaining a divorce, as resulted from the Recognition of Divorce and Legal Separations Act 1971 has been effectively controlled through the laws that followed, as analyzed above. The further increase of requirements in regard to the transnational divorces in England should be avoided as it could lead to severe delay in the completion of the relevant procedure, a fact that would be negative for all parties involved. Bibliography 1. Table of cases Berkovits v Grinberg [1995] Family Division 142 (fam) Chaudhary v Chaudhary [1984] Court of Appeal 19 (Fam) Sulaiman v Juffali [2001] EWHC 556 (Fam) Qureshi v Qureshi [1971] Court of Appeal 173 (Fam) R v Secretary of Secretary of State for the Home Department ex Fatima [1986] House of Lords 527 (Fam) 2. Table of statute Domicile and Matrimonial Proceedings Act 1973 Family Law Act 1986 Matrimonial and Family Proceedings Act 1984 Recognition of Divorce and Legal Separations Act 1971 3. Books Baarsma, N. (2011). The Europeanisation of International Family Law. New York: Springer. Dicey, A., Collins, L., Morris, J. (1987) Dicey and Morris on the conflict of laws, Volume 2. Oxon: Taylor & Francis. Murphy, J. (2005) International dimensions in family law. Manchester: Manchester University Press. Nichols, J. (2011) Marriage and Divorce in a Multicultural Context: Multi-Tiered Marriage and the Boundaries of Civil Law and Religion. Cambridge: Cambridge University Press. O’Brien, J., Smith, R. (1999) Conflict of laws. London: Routledge. Pearl, D. (1987) A textbook on Muslim personal law. London: Routledge. Wray, H. (2011) Regulating Marriage Migration Into the UK: A Stranger in the Home.. Surrey: Ashgate Publishing. Yilmaz, I. (2005) Muslim laws, politics and society in modern nation states: dynamic legal pluralisms in England, Turkey, and Pakistan. Surrey: Ashgate Publishing. Read More