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Report No. 65 IV. Act of 1971 8.11. Position regarding extra-judicial divorces under Act of 1971.- We may now discuss the position under the English Act of 1971-the Recognition of Foreign Divorces and Separations Act, 1971 regarding extra-judicial proceedings. In the Act1 of 1971, under section 2, divorce by "judicial or other proceedings" is recognised, subject to the other conditions laid down in the Act. It is not, however, clear if these words cover "talaq". If these words cover 'talaq' then, as is often pointed out, the only protection, of the wife is that she must be given notice of the proceedings2 and recognition may be withheld if the proceedings are manifestly contrary to public policy3. 1. Section 2, Act of 1971. 2. Section 8(2)(b), Act of 1971. 3. Section 8(2)(b), Act of 1971. 8.12. But is should be pointed out that "public policy" has rarely been invoked in this area of the law. So, one has to face the question whether "proceedings" in this Act includes a 'talaq'. This is not an easy question to answer. 8.13. Expression "judicial or other proceedings".- The Act of 1971, section 8, sub-section (2)(b), applies its provisions to divorce which has been obtained by means of "judicial or other proceedings", in any country outside the British Isles, if they are "effective under the law of that country1". The question whether "proceedings" includes extra-judicial divorces was inconclusively discussed in the House of Lords2 in the debates on the Bill. In the case of Randwan v. Randzvan, (1972) 3 WLR 735 (739) decided after the Act of 1971, it was assumed, but not decided, that section 2 of the Act3 of 1971 was applicable to an extra-judicial divorce, it being "other proceedings" within the meaning of section 2. 1. For House of Lords Debates, see Vol. 315, Vols. 483 to 497, Vol. 316, Cols. 1043 to 1051, and Vol. 322, Cols. 851 and 854. 2. For Debates in the House of Commons, see para. 8.18, infra. 3. Para. 8.4, supra. 8.14. Position under Act of 1971.- In view of the ambiguity of the words "other proceedings" in the English Act1of 1971-an ambiguity which is found2, also in the relevant paragraph of the Hague Convention3-4" it appears that it is possible to take the view that extra-judicial divorces-(i) are not governed by the Act of 1971, and (ii) are governed by the Common law. 1. Para. 8.5, supra. 2. See, further, para. 8.19, et seq., infra. 3. Article 1 of the Hague Convention. 4. Para. 8.17, infra. 8.15. It cannot be said that the problem is new. It may be noted that the Royal Commission on Marriage and Divorce1 had recommended the recognition of a foreign divorce "obtained by judicial process or otherwise" which has been granted in accordance with the law of the country in which one spouse was, or both spouses were, domiciled at the time of the proceedings. 1. Royal Commission Report, Cmd. 9678 (1956), draft section 8.    |
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