In the past one hundred years, the ease of transportation and the internationally shifting demographics due to travel, emigration, and various other reasons created a serious challenge to international private law, namely the dissolution of marriages that were made in other countries. One hundred years ago, the dissolution of marriage was carried out in accordance with the legal system of the country of domicile. The country of domicile was identified as the country in which the husband’s domicile was established (Jaffey, p.127). This was specifically the case in countries that applied the common law system (North, p.57). Today, things have changed and become much more complicated, together with the definition of domicile. Furthermore, lifestyles have also changed as individuals and families have much more freedom to move about, thus shifting from one legal jurisdiction to another. With these movements, new issues developed with respect to the dissolution of marriage. Several major questions ought to be considered when discussing the dissolution of marriage. Which forum has jurisdiction to dissolve a marriage? How is the legality of the dissolution of marriage affected as marriage is consummated under one system but dissolved under the jurisdiction of another? How are conflicts of jurisdiction and laws resolved when handling the dissolution of marriage? Finally, how is a balance established between the private and the public interest when a marriage is dissolved in international private law? (Jaffey, p.125). Needless to mention, the diversity of legal systems worldwide is one factor that contributes to the complexity of this issue. Hence, common law and civil law countries may and do have different views on the jurisdiction and recognition of marriage dissolution (Westlake, p.57).
Divorce and Dissolution of marriage
TRADITIONAL INTERNATIONAL LEGAL PERSPECTIVE
The Concept of Domicile
The traditional view on the dissolution of marriage was that the legal system of the country of domicile should be applied. Giving primacy to domicile as a jurisdictional basis for the dissolution of marriage stemmed from the desire of lawmakers to avoid what is known as “limping marriages.” This term relates to marriages that are recognized in one country but not in another. In other words, it was the intention of lawmakers who supported domicile as a basis for jurisdiction to see domicile become an internationally recognized basis among world nations, thus to create a uniform international legal framework on the dissolution of marriage (Westlake, p.207).
This view is supported by the statement made by Lord Penzance of the Privy Council in which he concluded that it is just and reasonable “that the differences of married people should be adjusted in accordance with the laws of the community to which they belong, and dealt with by the tribunals which alone can administer those laws” (North, p. 58).
Need for New Jurisdictional Bases
However, despite the insightful interpretation of Lord Penzance aiming at unifying the legal framework for the dissolution of marriage, it eventually became clear that recognizing domicile as a jurisdictional basis for the dissolution of marriage had to incorporate an expansion of the definition of domicile. A hundred years ago, domicile was the country where the husband lived. Thus, in the case of Alberta v. Cook, the husband and wife were judicially separated. The husband left the province of Alberta, thus shifting his domicile to another province. Thus, when the wife applied for a divorce, the Alberta courts refused to dissolve the marriage on the basis that the domicile of the couple had changed, despite the fact that the wife had already obtained a judicial separation from the courts of Alberta. Eventually, and with problems of this type arising, the definition of domicile was broadened and made more flexible in order to avoid similar complications and at the same time, to assure justice to the wife (North, p. 59).
DIVORCE IN INTERNATIONAL PRIVATE LAW TODAY
Reduced Reliance on Domicile
In the twentieth century, especially more recently, there has been a tendency among world nations to reduce their exclusive reliance on domicile to establish jurisdiction to dissolve marriages (Bellot, p.141). Although this has made it less likely that an international agreement on marriage dissolution would be developed in the arena of international private law, the objective of such an expansion of jurisdictional interpretations was to minimize the likelihood of injustice that may arise as a result of restricting legal forums to one legal basis when handling marriage dissolution cases (Bellot, p.141). One major cause for such broadening of jurisdiction and limitation of the use of domicile as a jurisdictional basis was the growing agitation related to a universal definition of domicile. According to English lawmakers interpreting domicile before the enacting of the 1973 Act, “’Belonging’ has two aspects: many people regard themselves as belonging here, because they are nationals or have their domicile here, though residing abroad almost permanently. Conversely, there are many who because of their residence ‘belong’ here, even though they have not acquired an English domicile or United Kingdom citizenship” (North, p.62).
The Broadening of Judicial Bases for Divorce
With the broadening of jurisdictional considerations in common law countries, new bases for jurisdiction became potentially valid in courts. These were the residence of the petitioner, the residence of the respondent, the nationality of the spouses, the commission of offence within the forum, or the celebration of marriage within the forum (North, p. 58).
While countries applying common law depend heavily on precedents that determine the course of development in laws and legislation, countries that apply civil law have approached different courses, although somehow arriving at the same conclusions.
Until early this century, if a couple belonged to different nationalities, the French forums gave each the right to choose the application of the laws of their respective nationalities. The problem, however, arose when one spouse belonged to a country which did not recognize divorce in the first place, such as the Republic of Ireland. Later on, and with the development of legislation, the French courts decided that domicile is to be taken as the basis for jurisdiction when either the husband or the wife are nationals of the country of domicile (Noeim, p. 144).
In Lebanon, the situation is different. Some Lebanese courts have considered the husband’s national law since the husband is considered to be the head of the family. Some courts have also applied the national laws of both spouses at the same time. On the other hand, the dominant trend is to recognize domicile of the couple as the basis of jurisdiction, with the definition of domicile in this case being the place where the marriage was originally celebrated. Some lawmakers, however, propose that Lebanese courts recognize the country of residence of the couple as the country of domicile since the interests of the two are related to the country where they reside (Noeim, p.145).
Domicile as a basis for jurisdiction in marriage dissolution cases, however, seems to be quite dominant in countries applying civil marriage. In France, with respect to couples residing in France as a domicile, if a Muslim husband divorces his wife in accordance with the Islamic laws that are applied in their country, the French courts will not recognize this divorce unless the causes of this divorce are in conformity with the French laws. By contrast, the French courts will recognize a divorce that takes place outside their jurisdiction, even if the bases for the divorce are not applicable in France. The objective of this is to prevent limping marriages and at the same time, to facilitate the development of an international legal system for the recognition of dissolved marriages worldwide (Noeim, p. 145).
Divorce and Dissolution of marriage
Dilemma in the Choice of Law
Apparently both common law and civil law countries were facing a dilemma as to choosing the appropriate basis of jurisdiction.
Unifying Legal Frameworks
The first major concern of these countries was to establish a legal framework to recognize the dissolution of marriage worldwide in order to avoid limping marriages. This was proving to be an urgent need, especially as the moving of people all over the globe became more frequent and common. Thus, it became very common to see marriages celebrated in one country while the dissolution of these marriages sought in other countries. It was not uncommon either that the spouses belonged to different nationalities, married in a third country and yet chose a fourth country for their domicile, or that one of the spouses moved out before the divorce was initiated and chose a fifth country for his or her domicile.
Cases of this type have troubled lawmakers all over the world. This has forced many countries to update their legislation in order to cope with the changing obligations arising from foreign marriages and divorces. The jurisdiction over the dissolution of marriage has not been the only problem, for the recognition of divorce is also problematic due to the acute difference in legislation worldwide (Peters, p.1).
The Interests of the Parties
Also worth considering are the interests of the parties involved in the divorce. Two levels of interests exist, the public interest and the interests of the individuals involved in the marriage (Westlake, p.207). In the twentieth century, and in the light of cases such as Alberta v. Cook, the interests of the individuals involved in the marriage has become more emphasized in international private law relating to the dissolution of marriage. Accordingly, the expansion of the legislation bases to include other bases other than domicile has had three major consequences. First of all, it has provided more consideration to the conditions of the divorcing couples than in the past. Secondly, it has made the legislation of individual countries much more flexible than it was in the past, such that the interests of individuals became more flexibly considered and served (Bellot, p.148). And thirdly, this expansion has made it more difficult than ever to arrive at an internationally agreed legal forum for the dissolution of marriage.
In other words, domicile as a basis of jurisdiction was once seen as the potential basis for an international legal forum for the dissolution of marriage. Today, this is no longer the case. While the advantages of this expansion can be seen to the interest of the divorcing couples, the fact remains that this expansion can defy itself, especially with respect to the recognition of divorces in countries basing their jurisdiction on different bases (North, p.70).
By and large, nations are becoming aware of such problems resulting from the application of different bases of jurisdiction. The case of Travers v. Holley is one that needs to be discussed in this respect. The couple were originally domiciled in England, but later on, moved to Australia where they established domicile. Later on, the husband left back to England where he established his domicile while his wife petitioned for a divorce in their last common domicile, and eventually was decreed a divorce. The British court in such cases would not have recognized the divorce since the decree was not issued by the forum of the domicile common to both spouses. However, the English Court of Appeal recognized the divorce on that basis that “It must surely be that what entitles an English court to assume jurisdiction, must be equally effective in the case of a foreign court…I would say that where, as here, there is in substance reciprocity, it would be contrary to principle and inconsistent with comity if the courts of this country were to refuse to recognize a jurisdiction which mutatis mutandis they claim for themselves” (North, p.71).
Apparently, the court was showing consideration to three important aspects. First of all was the interest of the individuals who were then living in separate domiciles. Secondly, the fact that both courts would have claimed jurisdiction to arrive at the same result. And thirdly, the need to arrive at a practical and just resolution for the case. This attitude was reflected by Kahn-Freund who interpreted what reciprocity meant in the explanation of the British court, “What reciprocity means here was ‘I will accept what you do, as long as you do what I do’, rather than ‘I will accept what you do as long as you accept what I do’” (North, p.72).
Yet, even this approach was later on to be closely scrutinized and criticized. In the case of Travers v. Holley, both countries, England and Australia were countries of common law, and henceforth, there were no differences in the laws and procedures. Yet, the problem was to arise when for example the divorce took place in a country that applied civil law while the country of domicile applied common law. The readings from Travers v. Holley did not give any recognition to such situations in England, and this was to be encountered in the cases of Indyka v. Indyka.
In that case, the Czech husband left his Czech wife at home and acquired an English domicile for himself. Years later, the wife petitioned for divorce which she was decreed from a Czech court on the basis of “deep disruption of marital relations,” a basis that does not give ground for divorce in England. The husband later on married an Englishwoman and a few years later, she demanded a divorce on the basis of cruelty, a basis that constituted a strong basis for divorce in England. The husband, however, perhaps willing to deprive his wife of any material gain out of the divorce, petitioned to the English courts arguing that his marriage to the Englishwoman was void since his first divorce was not recognized by English courts. Despite this, the English courts did recognize the divorce on the basis of the conclusions made by the House of Lords, “There is peril in assuming that only our rules are rational and justifiable. Looking back upon the course of judicial decisions, it is readily seen that through doctrine evolved one way, it might quite easily have evolved another way” (North, p. 72).
Similar developments, that is, the internationalization trend seems to have been taking place in countries applying civil law. The French legal system, for example, recognizes all foreign divorces that take place in the country of domicile even if the laws of domicile and its procedures actually conflict with the French laws.
Controversy tends to appear in what is known as extra-judicial divorces. These are divorces that are resolved on religious rather than on judicial basis. Islamic divorces, for example, known as talak, follow this pattern. For lawmakers that follow the common or civil law systems have disagreed on whether to recognize such marriages or not. The Qureshi v. Qureshi case faced by the British courts in 1972 is most relevant here, “The husband and wife were Muslims domiciled in Pakistan, though resident in England. They married in England. The husband, purported to divorce his wife by ‘talak’ and the procedures required by the law of Pakistan were gone through in the offices of the Pakistan High Commissioner in London. The divorce was valid under Pakistan law” (North, p. 77).
The importance of the Qureshi v. Qureshi case is based on three facts. First of all, the divorce was processed through an extra-judicial authority, namely that of the Pakistan High Commissioner in London. Secondly, the couple were resident in England for a long time and yet, they both maintained a Pakistani domicile. Thirdly, the divorce was recognized by the British courts. The courts in England recognized this divorce even though it was not processed judicially because the divorce was valid in the country of domicile of the couple. The British legislation with respect to extra-judicial divorces has therefore made it possible for the courts to recognize more divorces, especially Islamic divorces in recent years. For these courts, “The validity of a foreign divorce obtained ‘other than by means of proceedings’ (which means ‘judicial or other proceedings’) depends on the statutory re-enactment of the common law rule requiring the divorce to be obtained in the country of the common domicile or obtained in the domicile of one spouse and recognized in that of the other. Being obtained in neither but recognized in both will not suffice” (North, p. 77).
In other words, British courts will only recognize an extra-judicial divorce that is obtained in the country of domicile of the couple or one of the spouses, given that this divorce is recognized in the country of the other. In the case of Qureshi v. Qureshi, since the divorce was obtained through the office of the Pakistan High Commissioner who represents the authority of the common domicile, the British courts did not have a problem in recognizing this divorce. The British Courts, on the other hand, cannot recognize a bare ‘talak’ that is not obtained through the offices of the country of domicile of the spouses. To project on the Qureshi v. Qureshi case, if the spouses had not obtained the divorce from the Pakistan High Commissioner office, their divorce would not have been recognized in England. The reason for this obstacle is that British courts are constrained “under common law rules preserved in statutory form, which restrict the judicial bases of recognition to only that of domicile” (North, p. 77).
Other countries following common law have also adopted similar restrictive policies, especially Canada. Australia, on the other hand, follows a more liberal approach where statutory enactment recognizes divorces “effected by decree, legislation or otherwise” (North, p. 78). Nonetheless, in this case, the court will not simply recognize any extra-judicial divorce unless the act was actually a divorce. Furthermore, for public policy reasons, Australian courts may still refuse to recognize such a divorce (North, p.78).
In countries that apply civil law, extra-judicial divorces face a different situation, all depending on the legislation of the country. For example, according to the French legal system, an extra-judicial divorce will not be obtained in France by two Muslims if the divorce is demanded on bases that are not recognized by the French legal system. For example, if a Muslim man divorces his wife because of disobedience in France, the French courts will not recognize such a divorce. By contrast, it might recognize this divorce on the basis of adultery, although in general, the French system does not recognizes divorces that are caused by the will of one spouse only (eg. Husband calling talak upon his wife) or divorces reached by consent outside the courts of law. Meanwhile, if the couple obtain such a divorce outside France in a country where such a divorce is recognized, the French authorities will immediately recognize such a divorce. In contrast, the Lebanese legal system which also follows the civil law, recognizes extra-judicial divorces that are based on consent (Noeim, p. 144).
Annulment of Marriage
Annulment of marriage is in many ways similar to divorce in public international law, especially with respect to the conflict over jurisdiction. In Britain, the Domicile and Matrimonial Proceedings Act of 1973 treats the annulment of marriage on bases that are very similar to those of divorce. Thus, a marriage is annulled if either of the spouses is domiciled in Britain when proceedings began or if either of the spouses had been habitually resident for a year until the initiation of the proceedings, or, if at the time of death, either of the spouses had been domiciled in England. While the death of a spouse is irrelevant when it comes to divorce, with respect to annulment of marriage it makes a lot of sense especially that the annulment of a marriage whose party or both parties can be initiated by the successors for issues related to succession (McClean, p. 183).
In general, the courts of Britain and many other countries will annul a marriage if this marriage had been celebrated in a foreign country such that the formalities of the marriage were not respected or met. Reciprocally, a marriage is valid and cannot be annulled by a foreign court if the law of place of celebration has been respected and if there exists a capacity to marry by the law of each party’s ante-nuptial domicile (McClean, p. 185).
The implication and logic applied here is obvious. If a marriage is held in the country of domicile without respecting its marriage laws and formalities, the marriage can be annulled, even in a foreign country. Similarly, if the marriage is valid according to the country in which it was celebrated but voidable under the laws of the current forum, the laws of the country of celebration will be respected, and the marriage will be recognized as legal. A problem definitely arises when countries apply different bases for jurisdiction. For example, if the spouses are nationals of a certain forum say England, are married under a third forum say Denmark, and then domiciled in a fourth country say Turkey, the question will be whether to apply the national laws or the laws of the country of celebration or the law of domicile. The most likely reasoning in this case is to apply the laws of the country in which the marriage was celebrated. However, this would also be contested in many countries if such a marriage was a shoppers’s marriage, that is, made for purposes other than establishing a family such as the achievement of a residency or a visa.
ALIMONY IN INTERNATIONAL PRIVATE LAW
Unlike divorce, alimony relates to the creation of a financial liability against the defendant. Hence, it is not a decree or a legal verdict in which the status of the couple is affected, but rather, a “decree in personam” that is, a decree that relates to a liability imposed on the individual. Alimony is not always connected to divorce as in many countries, alimony might be imposed without a divorce and vice versa. At the same time, some countries will recognize a divorce decreed in another country but that does not impose an alimony, but at the same time, they will impose an alimony on one of the parties even though the divorce decreed in another country does not impose such a liability. In other words, the practices of states with respect to alimony implies a separation between divorce and alimony. Another issue over which states seem to agree is that without the ability of the state to seize the property of the individual who is supposed to pay the alimony, a decree of alimony is simply void. Accordingly, it is not uncommon for courts of law to have jurisdiction for divorce but to refuse to impose alimony since the properties of the spouse who is to pay the alimony are not within the jurisdiction of the court. In Common Law countries, specifically Britain, The Restatement related to Alimony states that “No action for alimony can be maintained under the common law or the statutes of another state” (McClean, p.191). The general view with respect to alimony is that a foreign verdict of alimony is recognized and even executable in other countries, but usually given that the court has jurisdiction over the property of the spouse on whom alimony is imposed (McClean, p.191). At the same time, common law courts agree that there is no dispute over jurisdiction over alimony, but rather, an argument over whether alimony is possible to apply in accordance with the local laws of nations. Today, most legal systems tend to recognize a decree of alimony issued by foreign courts, especially if such a decree is accompanied by a divorce decree. Some conflicts, however, may arise. For example, the law in Denmark does not recognize alimony in the first place. Hence, foreign courts that rule according to the law of nationality tend to impose alimony on either spouse if the couple are Danes in conformity with the laws of their country. Yet, all in all, the issue of alimony remains separate from the case of divorce in international private law (McClean, p.192).
EVALUATION OF DIVORCE IN INTERNATIONAL PRIVATE LAW
With respect to the dissolution of marriage, world nations may be divided into three distinct categories. The first category includes those nations that apply the civil law system where rules are enacted restricting courts from providing additional legislation or interpretation. Restrictive and rigid as these systems may be, they have in fact adopted quite a liberal stand towards the dissolution of marriage. In civil law countries such as France, the dissolution of marriage is mostly based on the country of domicile, taking into consideration the potential conflicts of the domicile of the two spouses. With respect to the recognition of divorce, civil law countries are also liberal in recognizing extra-judicial divorces when these divorces are legally obtained in other countries, and when these divorces do not conflict with the laws of the countries to which the two nationals belong. Nonetheless, it is important to mention that some civil law countries are very strict about the obtaining and recognizing of divorce, and thus, legislation might vary considerably from one country to another.
Common law countries, on the other hand, give a lot of liberty to their courts of law in interpreting laws and affecting legislation. These countries have over the past one hundred years developed their views and applications with respect to international divorces in various ways, reducing the dominance of the domicile as a basis for jurisdiction, and at the same time, introducing new legislation, mainly through statutory intervention, specifically to regulate the recognition of international divorces in these countries (Westlake, p.59). Common law countries have also adopted varying degrees of restriction with respect to the recognition of extra-judicial divorces (Westlake, p.57).
The third group of countries apply other types of marriage and divorce legislation. Most of these countries apply the Islamic Sharia marriage system where divorce is mostly seen as extra-judicial. Yet, some Islamic countries have a mixture of civil and Sharia marriages, an example of which is Egypt.
With such sharp variation the legislation in marriage dissolution worldwide, and with the growing ease of transportation and change of residence and domicile, matters of divorce have pressured the legal systems of all world countries. Many complications have been faced, forcing legislation in this respect to follow new and even innovative trends with respect to legislation.
One major problem that is witnessed by legal system is a limping marriage or divorce. In such cases, a divorce might be obtained in one country but it may or may not be recognized in other countries. By and large, this means that if a party involved in such a situation wants to remarry, his or her marriage might not be recognized in other countries.
A hundred years ago, the circles of international private law had the opportunity to come up with a unified legal system since most countries managed divorces on the basis of domicile. The problem at that time, however, was that domicile was restricted to the husband, and hence, imposed serious injustice on the wife. It was not uncommon for a wife who wanted to petition for divorce from a husband who had deserted her to have to follow him wherever he traveled in order to obtain her divorce on the basis of his new domicile. As the interpretation of domicile broadened, countries began to shift away from domicile as the only basis for jurisdiction.
In fact, even the definition of domicile has been changed, as new concepts have been applied to it that make it far from being unified for international legislation. The nationalities of the spouses, their place of residence and living, and above all, their different domiciles in case they are separated in different countries are all now considered to variant degrees by the legal systems of different countries.
Two important principles that have recently developed are related to the public interest and the individual interest. Legislation pertaining to divorce in international private law consider the public interest and public policy as grounds for legalizing and recognizing divorces of international nature. This has been the policy known worldwide until today (Peters, pp. 1-2). However, the interest of the individuals has mostly developed with the growing influence of the human rights perspective in legislation (Paton, 177). Accordingly, courts in common law countries and legal systems in civil law countries have been more flexible with the legislation and recognition of divorce in international private law so long as such divorces obtained and recognized will not disrupt the public policy or interest (Bellot, p.148).
It is not yet clear whether a domination of the human rights perspective in legislation worldwide is going to have a unifying or an opposite impact on divorce in international private law. What is obvious is that domicile remains one of the important basis for legislation in this respect. Yet, so long as different countries apply different laws to marriage and divorce, domicile cannot become as a unifying factor. Moreover, ironically, if there is to be an international law for the dissolution of marriage, in this case, domicile will no longer be applicable since there will be no differentiation of laws pertaining to marriage and divorce. Such a situation, however, is most unlikely, specifically with the high degree of variation among cultures, religions and legal systems. What can be hoped for at most is a unified legal framework where the legal contracts of marriage and the dissolution of these marriage will be recognized worldwide without serious obstacles that create limping marriages or that force hardship and pain upon the parties involved. Thus for example, if a Chinese husband married to an English woman get married in Italy where their domicile established, change their domiciles to two different countries such as Saudi Arabia and Brazil, we are going to have a serious legal problem. England for one is a common law country while Saudi Arabia applies the Islamic Sharia Law. At the same time, Brazil is very strict about divorce policies. Furthermore, any attempt of the two spouses to petition for divorce is going to be very costly and will definitely inflict serious hardships upon them in terms of travel and the disruption of their regular lifestyles. This is where the human rights perspective is invoked. A person has to be entitled to a divorce just as he or she is entitled to get married, and obstacles resulting from conflicting legislation and physical separation by distance should not stand as impediments in the way of the normalization and resuming of ordinary lifestyle. From the individual perspective, what is needed is a unified legal system whereby the individual will be entitled to petition for and obtain a fair divorce without having to travel around and change domicile in order to seek more convenient laws. As a matter of fact, it is the laws that have to be changed and modified in order to make them more convenient for human beings.
With all these difficulties and inconveniences in sight, the following recommendations may contribute to improving international private laws on divorce.
First of all, countries should be encouraged to reform their legal systems such that their legal systems will recognize all the divorces that are obtained in other countries.
Secondly, countries should modify their legislation such that they do not become havens for commercial divorce whereby individuals from all over the world may target them to obtain cheap and irresponsible divorces that may cause serious harm and unjust to their spouses. Important in this respect is to recognize common domicile, the domicile of either spouse, or the nationality of either spouse in the dissolving of marriage. The laws of the common domicile are recommended since the country of common domicile is where the couple share their lives and interests. Common domicile is recommended even if the couple are residing in different countries at the time the divorce is petitioned. However, if the couple belong to the same nationality or to different nationalities, but they agree on referring to a common legal forum (of either nationality), then they should not be barred that right. Still, however, incorporating such an option in the legislation of nations will require an international agreement or statute to be ratified by the legislatures of these countries. However, it is strongly believed that such an international reform will be have a favorable impact on surmounting the legal obstacles that face the dissolution of marriages worldwide today.
Attempts to establish a common legal forum for the dissolution of marriage have not yet been made. It is not even clear whether with all the differences among the various legal systems pertaining to the dissolution of marriage worldwide, it would be possible to achieve such a common ground. Lawmakers, however, are aware of the fact that the dissolution of marriage is one major problem where humanitarian factors and interests should be taken into consideration due to the distressful impact that divorce imposes on the lives of individuals. The changing form and nature of international demographics, the growing interrelationship between and among international legal forums and systems, and above all, the increasing pressures on courts of law worldwide in relationship to cases of international divorce, are all factors that may push further developments in international legislation. Nonetheless, the direction of such legislation is not obvious.