Guidance

Overseas divorces: SET13: withdrawn

Updated 16 March 2022

This guidance was withdrawn on 16 March 2022

This guidance is out of date and has been withdrawn.

This guidance was withdrawn on 16 March 2022.

1. SET13.1 Background

The Recognition of Divorces and Legal Separations Act 1971 set out the criteria for the recognition in the UK 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.

2. SET13.2 Definition of an overseas divorce

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

3. SET13.3 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 UK 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 for example, 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 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.

4. SET13.4 Recognition of overseas divorces which took place on or after 4 April 1988

Under the Family Law Act 1986 an overseas divorce obtained by means of judicial or other proceedings is recognised in the UK only if:

• it is effective under the law of the country in which it was obtained; and
• at the relevant date (that is, the date on which proceedings were begun), either party was either habitually resident or domiciled in that country or was a national of that country.

The term ‘judicial or other proceedings’ requires that there should have been some formal proceedings, either before a court or some other formal body recognised by the state for that purpose (for example, in Pakistan the Union Council). It is an important aspect that the judicial or other body should be impartial as to the outcome of the proceedings.

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

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

The term ‘otherwise than by means of proceedings’ covers, for example, a meeting of family members convened to dissolve a West African customary marriage or to hear the pronouncement of talaq.

5. SET13.5 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’. This pronouncement dissolves 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:

• the husband must give notice in writing of the pronouncement of a talaq divorce to the Chairman of the Union Council of the Ward,
• the husband 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. 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 means of proceedings as defined under 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. 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.

6. SET13.6 Talaq divorce in the UK

If a husband pronounces talaq divorce in the UK alone, the divorce will not be recognised.

If a husband pronounces talaq divorce in the UK and then notifies his wife and the Union Council Chairman in Pakistan or Bangladesh, the divorce will not be recognised. The UK 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.

7. SET13.7 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). The ECO at Indian posts will normally be in the best position to determine whether a particular divorce is effective under the Hindu Marriage Act 1955.