If you’ve been divorced in Europe, the probability is that your marriage will be recognised in Britain under the Brussels II framework of recognition of foreign orders between EU countries. If you have been divorced outside of the EU member states it may be more difficult to prove a valid divorce has taken place. In the recent case of NP v KRP [2013] EWHC 694 (Fam) there was a customary panchayat divorce in India which was argued by the ex wife to be invalid under English law on the basis she had not known of or consented to the divorce in India (discussed below).

So when will a divorce in a foreign country be held to be valid in England?

If you have been divorced outside of Europe, the Family Law Act 1986 generally qualifies between divorces which have taken place through a procedure, and those which have not. This means there is a difference between divorces which have been formalised as an order in proceedings (usually by the court of the relevant country), and those informal divorces which have been made in the community as per the relevant custom. This is particularly common in the Hindu and Muslim religions.

When a foreign divorce is formalised abroad it must be as part of proceedings although these can be judicial or extra judicial ie in or outside of court. The leading case is Quazi v Quazi in which the couple were divorced in Pakistan as per a talaq divorce which involved the husband formally repeating before witnesses the word ‘talaq’ three times. The talaq was then given to the relevant authority and notice given to the wife. The issue decided by the Court of Appeal and eventually the House of Lords in 1979 was whether the talaq process was within the definition of ‘quasi- judicial proceedings’. It was held that there was a valid divorce as the talaq was officially recognised by the law of Pakistan as leading to an effective divorce.

Therefore, for a foreign divorce order made as part of a procedure to be valid in England the following three criteria must be seen to be met:

  1. the foreign order must be valid under the law of the country in which it was obtained as per the talaq in Quazi
  2. at the date at which recognition of the foreign order is sought, either of the parties was habitually resident, domiciled or a national of the country in which the foreign order was obtained

If the divorce has not been part of proceedings abroad then the situation may be more complex. You need to be able to prove that the act which has taken place is enough to constitute a divorce, dissolution, annulment or legal separation. The following requirements must be met to be recognised under the FLA 1986:

  1. Again, the foreign order is effective under the law of the country in which it was obtained; and
  2. at the date the foreign order was obtained each party was domiciled in the country in which the order was obtained, or one party was domiciled in that country (according to the laws in the country in which the order was obtained) and the other domiciled in a country under whose law the foreign order is recognised as valid; and
  3. neither party was habitually resident in the UK during a period of one year immediately preceding the date of the foreign order

When may an order be refused recognition?

  1. Where there was no subsisting marriage to divorce; or
  2. If recognition is incompatible with a decision already in existence re the validity of the marriage ie the marriage has already been recognised as valid by the courts; or
  3. where there was insufficient notice or no notice of the proceedings in which the divorce was obtained was given to a party; or
  4. a party had no opportunity to participate in the proceedings and the recognition of the divorce would be contrary to public policy; or
  5. there is no official document certifying the divorce and recognition would be contrary to public policy

As per point 3, recognition of a divorce may be refused where steps have not been taken to give notice of the proceedings to a party to the marriage or when they have not had proper opportunity to take part in those proceedings. However, if a divorce in that country could be valid even without notice or participation then it may still be regarded as valid in England. In the case of NP v KRP, the divorce was not part of judicial proceedings and in order to be a valid under panchayat at least one of the parties must wish to divorce and the divorce must be endorsed by the community and family; there were no such requirements for notice to be given to the other party to participate. Therefore, the courts will look at the reality of the situation abroad and how the order would be viewed there. Because in India no notice had to be given to the other party, in Britain the order was held to be valid as per the rules in India. This case shows that English courts are willing to recognise divorces that are very different in form and grounds from our own.

If this seems unjust to the person asserting the divorce is invalid because they were not given a true opportunity to take part or have their say, they can argue that recognising the divorce in England may be manifestly contrary to public policy. This was asserted in the case of NP v KRP and Mrs Justice Parker said the test against public policy was whether the divorce offends against justice. In this case because the wife failed to tell the truth a number of times, and there were suspicions about her immigration status, the divorce was not contrary to public policy. A Judge may be more sympathetic to a party who has been bullied or purposefully misled when the divorce took place, if recognising the divorce in these circumstances could be shown to offend justice.

Given the era of globalisation in which there is widespread forum shopping for divorce, the provisions relating to the validity of divorces made abroad may be influential in the many modern cases which involve an international element, and are worthy of close examination.