Chapter 13 Annex 1

Overseas divorces

The Recognition of Divorces and Legal Separations Act 1971 set out the criteria for the recognition in the United Kingdom of overseas divorces. The Family Law Act 1986 instituted new provisions for the recognition of overseas divorces which took place on or after 4 April 1988.

Definition of an overseas divorce
An overseas divorce is one which has been obtained by means of judicial or other proceedings in any country outside the UK and which is effective under the laws of that country.

Recognition of overseas divorce which took place before 4 April 1988
An overseas divorce which took place before 4 April 1988 is recognised in the United Kingdom under the 1971 Act if, at the date the proceedings started, either spouse was habitually resident in, or was a national of, the country where the divorce was obtained. The Domicile and Matrimonial Proceedings Act 1973 added provisions which came into effect on 1 January 1974.

These provisions covered forms of divorce which the courts had ruled were not by means of judicial or other proceedings e.g. bare talaqs (see subsection below). Such forms of divorce could be recognised if both parties were domiciled in a country or countries which recognised such divorce. If, however, one party was domiciled in any part of the UK at the time such a divorce took place, it would not be recognised.

An overseas divorce which had been obtained other than by proceedings in a court of law cannot be regarded as having validly dissolved a marriage if both parties had throughout the year immediately before the institution of the proceedings been habitually resident in the UK.

Recognition of overseas divorces on or after 4 April 1988
Under the Family Law Act 1986 an overseas divorce obtained by means of proceedings is only recognised in the UK if:

• it is valid in the country in which it was obtained;
• at the relevant date, either party was either habitually resident or domiciled in that country or was a national of that country.

An overseas divorce obtained otherwise than by means of proceedings is recognised in the UK if:

• it is valid in the country in which it was obtained;
• at the relevant date, both parties were domiciled in that country or one was domiciled there and the other was domiciled in a country which recognised the divorce;
• neither party had been habitually resident in the United Kingdom throughout the period of one year immediately preceding that date.

The Talaq divorce
Under traditional Islamic law a bare talaq divorce is deemed to have taken place when the husband pronounces three times I divorce thee. Such a pronouncement has the effect of dissolving the marriage instantly.

However, the Muslim Family Law Ordinance 1961 (MFLO) sets out formal requirements for the recognition of full talaq divorces in all parts of Bangladesh and Pakistan except Azad Kashmir. Under the MFLO a husband must give notice in writing of the pronouncement of a talaq divorce to the Chairman of the Union Council of the Ward, and he must also give a copy of this notice to his wife. At the end of 90 days (or at the end of the wife’s pregnancy if she is pregnant at this time) the divorce will take effect, although there is provision for attempts at conciliation between the two parties during this 90 day period.

Only a talaq under the MFLO is considered to have been obtained by proceedings as defined under the UK Acts.

If a full talaq divorce takes place in Bangladesh or Pakistan it will be recognised in the UK if the procedures laid down under the Muslim Family Laws Ordinance 1961 were complied with, and:

• the husband or the wife is a Bangladeshi or Pakistani citizen;
  or
• he or she is habitually resident in Bangladesh or Pakistan;
  or
• he or she is domiciled in Bangladesh or Pakistan.

The MFLO procedures have not been formally extended to Azad Kashmir and the only form of divorce which can be recognised there is the traditional bare form. If a bare talaq divorce takes place in Azad Kashmir, it will be recognised in the UK only if the husband and wife are both domiciled in Azad Kashmir and neither partner has been habitually resident in the UK in the year immediately preceding the pronouncement of the divorce.

If a bare talaq divorce takes place elsewhere in Pakistan or Bangladesh, it will not be recognised in the UK.

If a husband pronounces talaq divorce in the UK alone, it will not be recognised. Similarly if a husband pronounces talaq divorce in the UK and then notifies his wife and the Union Council Chairman in Pakistan and Bangladesh, it will still not be recognised because the courts have held that an overseas divorce is capable of recognition in the UK only if the divorce has been instituted and obtained in the same country outside the UK.

Hindu divorces
In India the Hindu Marriage Act 1955 contains provisions for the dissolution of marriage on specified grounds by petition to a district court. The Act also protects certain customary rights, and in some cases divorce can also be effected by consent of the caste Panchayat (or council of elders). ECOs at Indian posts will normally be in the best position to determine whether a particular divorce is effective under that Act.

Back to Chapter 13