International Private Law - Lecture 7 - Recognition and Enforcement of Foreign Divorces and Dissolution of Civil Partnerships
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International Private Law (LAW10118)
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Edinburgh Napier University (ENU)
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International Private Law
Lecture notes for the International Private Law module linked to E B Crawford and J M Carruthers, International Private Law in Scotland book. Author achieved a first-class grade for the module.
International Private Law - Lecture 3 - Choice of Law for Contractual Obligations
International Private Law - Lecture 9 - Choice of Law for Property and Succession
International Private Law - Lecture 6 - Divorce Jurisdiction and Choice of Law Rules
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Topic 7: Recognition and Enforcement of Foreign Divorces and Dissolution of Civil Partnerships
Questions to consider: a Reminder
▪ Focus: How IPL rules enable divorce, separation, nullity proceedings to be brought in Scottish
courts and foreign divorces to be recognised in Scottish courts:
▪ Which IPL rules are there to establish…
1. Jurisdiction for divorce proceedings in Scotland
2. Choice of Law for divorce proceedings in Scotland
3. Recognition of foreign divorces
▪ Two related questions: what connecting factors do the courts use? Which court issued the
decision (eg divorce judgment) – EU Member State or non-EU State?
Recognition of Foreign Divorces:
▪ Key Question: On what basis will the Scottish court recognise a divorce, legal separation and
annulment granted by a foreign court? Why matter?
▪ Common law:
▪ Divorce: Le Mesurier
It mattered that jurisdiction on recognition of a divorce had to be through the
husband’s domicile, so the gateway was the husband’s domicile to bring divorce
proceedings and to get a judgement recognised – it would only be recognised on the
husband’s domicile. Therefore, divorces granted by the courts of the husband’s
domicile would be recognised. A divorce granted in the courts of the husband’s
domicile would be recognised in Scotland because of the status of the husband. That
was the law before the modern changes where the wife can have her own
independent domicile.
Armitage v Attorney-General – privy council case
There was this predisposition to judgments from the husband’s domicile of taking
precedence and being capable of recognition.
Travers v Holley – privy council case
This said that if the English court could assume jurisdiction under domestic law, then
it would recognise a foreign divorce even if the ground of divorce was not recognised
by English law. Would we take jurisdiction in this given case? And if so, we will
recognise a judgement from a foreign court even if it is not on a ground of divorce
that we ourselves would not accept.
, Indyka v Indyka
This case basically said that you should recognise a foreign divorce where it was
granted by a legal system that the parties had a real and substantial connection with
the place where the divorce was granted.
Galbraith
Indyka v Indyka was followed in this case which is a Scottish case. There was a real
and substantial connection with Finland. Even though the grounds of divorce were
ones that Scotland would recognise, the real and substantial connection that the
parties had with Finland was acceptable to allow for recognition of that divorce from
Finland. The wife was habitually resident there so that was the real and substantial
connection, and she had no intention of leaving Finland.
Bain
A Japanese court took jurisdiction for divorce but applied Scots law of desertion
because the husband was Scottish domiciled. The case was brought in Japan, but the
court applied foreign law, in this case the Scots law of desertion (another grounds for
divorce). There was a claim as to whether this should be recognised as in fact the
Japanese court made a mistake in applying Scots law. The Scottish court was not so
bothered about that because foreign law is a fact in that legal system, so it’s a matter
of fact rather than law, so they did not have any problem in recognising the decree
from Japan. The real and substantial connection was the wife had habitual residence
in Japan. The dissertation was on the grounds that the husband had disserted her
after one day of marriage.
▪ Nullity: recognised if granted by court of competent jurisdiction:
Administrators of Austrian Property v Von Lorang
▪ Statute: replaced common law, based on where the divorce decree was granted.
▪ For non UK divorces: annulments, legal separations obtained from (a) another part of the UK
(b) an EU Member State or (c) a non-EU Member State, apply Family Law Act 1986.
Judgment from another part of the UK: Family Law Act 1986
▪ To be an ‘effective’ decree: must be granted by court of civil jurisdiction s.44(1)
▪ Exclusion of divorce from non-judicial proceedings (not granted by a court but by a religious
council or an administrative body or some other religious proceedings, not granted
recognition in any part of the UK):
Sulaiman v Juffali
This was a question of jurisdiction: could the wife bring divorce proceedings against the
husband in England? The husband contested the jurisdiction, he said the marriage had already
been dissolved abroad. So the husband said there is no jurisdiction in England because they
were already divorced. In this particular case, the husband had made an oral pronouncement
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