Will My Overseas Divorce Be Recognised In England And Wales?

We live in a multi-cultural society; family lawyers are therefore often faced with the question as to whether a client’s divorce overseas will be recognised here, in England and Wales. 

Religious divorces, such as the Talaq or the Get for example, are not always recognised in the UK, and the courts will always need to consider whether the divorce has been conducted through ‘proceedings’ or if the divorce has been obtained through other means, ‘non proceedings’. There are certain criteria that need to be fulfilled for the divorce to qualify as valid through ‘proceedings’ or ‘non-proceedings’ and The Recognition of Divorces and Legal Separations Act 1971 was introduced to define an overseas divorce through ‘proceedings’.

What does this mean?

For an overseas divorce to be formalised through ‘proceedings’ it requires the involvement and formalities of the court in that country, and it is essential that the divorce started and finished in the same country. On the contrary, if the overseas divorce takes place outside of proceedings i.e., through ‘non proceedings’, it tends to take place via other administrative avenues rather than through courts.

The statutory basis for the recognition of overseas divorces, annulments and legal separations is now contained in Part II of the Family Law Act 1986. 

For an overseas divorce that is obtained through proceedings, the following criteria must be met, and it will be recognised in England and Wales if:

1. The divorce, annulment or legal separation is valid under the law of the country in which it was obtained; and
2. At the time of the divorce, either party to the marriage was:
   1. resident in the country in which the divorce, annulment or legal separation took place; or
   2. domiciled in the country in which the divorce, annulment or legal separation took place; or
   3. is a national of the country in which the divorce, annulment or legal separation took place.

By comparison, if an overseas divorce is obtained by non-proceedings, it will only be recognised if:

1. It is valid under the law of the country in which it was obtained; and
2. At the time of the divorce:
3. Both parties were domiciled in the country in which the divorce, annulment or legal separation took place; or
4. Either party to the marriage was domiciled in the country in which the divorce, annulment or legal separation took place, and the other party was domiciled in a country that would recognise the divorce; and
5. Neither party to the divorce, annulment or legal separation was habitually resident in the UK for a year prior to the divorce. 

The case of Baig v Entry Clearance Officer, Islamabad [2002] UKIAT 042295 (‘Baig’) was a case in the Immigration Appeal Tribunal and highlights the importance of distinguishing between a divorce obtained through ‘proceedings’ and ‘non-proceedings’. It was noted in this case and made very clear that a divorce obtained through other means, or ‘non-proceedings’ will not be valid if either party is habitually resident in the UK for the period covering the year prior to the divorce. 

How does this work in practice?

We have established that there should be one single set of proceedings, which must be instigated in the same country as the divorce was obtained. For example, if the Muslim Talaq is pronounced in one country but the registration of the Talaq is completed in another country, this would be considered as a ‘transnational divorce’, which is not recognised under the law of England and Wales. The case of Sulaiman v Juffali [2002] was such a case, where the ‘bare’ Talaq was pronounced by the husband in England but then registered with the Sharia Court in Saudi Arabia. Although this may have been recognised as a valid dissolution of the marriage under Sharia law and under the law of the country where the parties were domiciled, the issue here was whether the divorce would be recognised in England and Wales.

In this case the Talaq was not registered in the country in which it was first pronounced. The Talaq was pronounced in the UK whereas the divorce was obtained and formalised in Saudi Arabia. The pronouncement of the Talaq constituted an effective divorce under Sharia law but did not amount to proceedings in England and Wales, given the transnational element. 

For family law practitioners in England and Wales, it is important to have an understanding of other cultural norms and to recognise that for many clients, it is not common knowledge that there may be a need for both a civil and religious divorce, in order for this to be recognised legally, in England and Wales. 

This is a complex area of the law which needs to be considered on a case-by-case basis. At Irwin Mitchell, one of our specialist family lawyers will be able to answer any questions you might have about an overseas divorce, and how to ensure this is valid in England and Wales.

Visit our website for more information on Islamic divorce.