Report No. 65

II. Classes of Extra-Judicial Divorces

8.3. Classes.-

Extra-judicial divorces could be broadly classified into those dependent entirely on the parties' volition and those requiring the approval of some authority. The authority, again, may be administrative, religious, quasi judicial or judicial. Often, the administrative or other authority does not make an independent inquiry, but merely sets its imprimatur, by way of record, upon the formalities undergone by the parties. Again, reverting to the first class of extra-judicial divorces-i.e., divorces purely by action of the parties, the divorce may be effected by act of one party, or it may require the concurrence of both. To some extent, this endless variety and numerous classes of extra-judicial divorces have contributed to the obscurity of the position regarding their recognition that prevails in England1.

1. See para. 6.8, et seq., infra.

8.4. Writing in 1952, Graveson1 classified extra-judicial divorces as

(i) unilateral;

(ii) consensual;

(iii) pronounced by some non-judicial authority of the State, whether legislative or executive; or

(iv) religious.

But he added that of these, the fourth case-religious divorces-would seem to fall either into the category of unilateral divorces, in which some religious official takes a minor part; or into the broad class of judicial divorces, as in the Rabbinical law2.

For our purposes, it is sufficient to bear in mind that divorces entirely dependent on the act of patties present greater problems than divorces requiring some kind of formal 'proceeding'. This will be evident from the discussion of the words "judicial proceeding" in the later paragraph of this Chapter3.

1. Graveson Recognition of Foreign Divorce Decrees, (1952) 37 Grotius Society Transactions 149 (160).

2. (a) Sasson v. Sasson, 1924 AC 1007 (PC).

(b) Priger v. Priger, (1925) 42 TLR 281.

(c) Spivack v. Spivack, (1930) 46 TLR 243.

3. Para. 8.13, et seq., infra.

8.5. Examples of extra-judicial divorces.-A few examples of extra-judicial divorces may now be referred to. A Jewish divorce is effected by the husband delivering a Ghat (bill of divorcement), i.e., a written document, to his wife. The consent of the wife is essential to the divorce. The ceremony takes place before "a Rabbi and two witnesses". The divorce, however, takes effect by the act of the husband; the requirement of the rabbi and witnesses is more to authenticate the delivery and to ensure that moral grounds exist for the divorce and that the parties both consent and understand the nature of the act.1

1. See 37 Modern Law Review 611.

8.6. A Muslim divorce in the Talaq form is traditionally effected by the Ivilsband pronouncing three time the word "Talaq" (I divorce you). The wife need not be present, and she need not be given prior notice of the intention to divorce her. According to ancient Islamic law, these procedures can be undergone without any reference to any court or other authority. In modern times, however, the civil authorities in many Muslim countries do require further formalities which make the act of divorce more public, or (as in Pakistan and Egypt) give greater protection to the wife1.

1. See 37 Modem Law Review 612.

Back

Index

Next