Question 1

The way English Courts work when dealing with foreign courts like acknowledging or declining foreign court rulings is quite hard to understand. While acknowledging a decision made by the foreign court, there is a set of rules and obligations to act upon. The English law is very broad like they even have the principles for such situations in which the English courts can deny to acknowledge an annulment made by the foreign court. When concerned with the dissolution of marriage, the issue of annulment holds significance, particularly due to the fact that some of the divorce proceedings begin or take place outside the jurisdiction of the English courts, which eventually leads to the parties seeking annulment in other countries’ courts. There exits a great possibility that the English courts may not always acknowledge such “annulment in divorce matters”. The main focus of this essay is when and under which conditions the English courts denies to accept “foreign annulment and divorce”. We shall be exploring the answers by going through several cases and provisions of agreements.

The concept of jurisdiction plays an important role in the issues regarding recognizing the foreign annulments in accordance with the “Brussels II Regulation”. It is to be noted that the regulation is also applied even when we are concerned with the “civil proceedings specifically marriage annulment”. Furthermore, the issues of staying proceedings also take place when we are dealing with matters regarding “divorce or annulment” as per the regulation’s Article 11(1). In the same way as per the “regulations 2016/1103 and 2016/1104”, it is to be noted that the court lacks jurisdiction over dissolution, divorce, or annulment unless there exists an agreement between spouses or partners”. In accordance with “Articles 4 and 5(1)”, the courts might also have the authority to acquire jurisdiction in such proceedings and give their verdicts.

The moment the English courts have decided not to acknowledge an “annulment”, the element of “Nullity” becomes relevant. However, the responsibility to assess the impediment to marriage also lies upon the shoulders of the court. It is to be noted here that the primary concern for the English courts is to deal with the issues that are relevant to marriage instead of considering the “law of choice in matrimonial or divorce cases”. During the case “Brook v Brook”, “the man was prohibited from becoming a part of any prohibited relationship with his wife's sister, and the court approached the matter in terms of domicile rather than the application of law”. Hence, domicile issues also hold significance in the termination of marriage.

The basis of the public policy is also considered highly crucial when turning down “foreign annulments and divorces”. But there are other elements as well which play a significant role. However, in these factors a highly important role is the “domicile of the peoples”. Furthermore, the courts also keep in mind the results associated with the case as well. As during the case “Ogden v Ogden”, where a citizen of France with the “French Domicile” went on to marry a woman belonging from England with “English Domicile”. But the problem was that the marriage took place without asking for the willingness of the parents of the English woman which was required due to the French law “Article 148 of the French Civil Code”. Later on the man went on

get “annulment” from the court of France meanwhile the English woman decided to marry a person belonging from England with the English domicile. Things took a turn when her second husband, the one with English domicile, decided to “file a petition for a decree of nullity” on the grounds that at the moment of their marriage ceremony his wife was still married with that guy from France. In the above mentioned case, two pivotal considerations or questions appeared: “either to affirm the necessary validity of the marriage or to evaluate the formal validity of the marriage ceremony”. Now in case the English courts prefer to give their verdict while supporting the latter consideration, there might be an entirely different outcome. This is the reason why the English court considered the rule of French law i.e. parental consent to a marriage, more formal.

Another case was brought into the court where a man of age 26 years decided to marry a girl who was half of his age i.e. 13 years, during the case “Mohamed v Knott” and their marriage took place in “Nigeria”. But the court declined to consider and gave their permission for the marriage. Similarly, another such marriage case was brought up in the court of Hungary where a man aged over 40 decided to marry a young girl aged 15 but this time the court “annulled the marriage”. Furthermore, Smart criticized the decision to annul the marriage, a sentiment also echoed in the Anglo Am Rev case. Moreover, following “Clarkson and Hill” a defence was raised. When the topic is concerned with “second marriages”, the English court’s jurisdiction and the denial of foreign annulments is significant. It is to be noted that in the majority of the cases first marriage is considered right. Yet, in a second “monogamous marriage”, questions are raised regarding its matter of validity. In this regard, we can discuss the case “Lawrence v Lawrence” which took place in the English court and in this case a wife put forward a “petition for nullity”. The basis upon which she did what she did was that “she had contracted a second marriage bigamous”. She took a divorce and chose to stay in Nevada. In light of the English legal principles, the divorce was considered valid and was recognised. During the earlier stages of the case, the court was in favor of the second and as per “Lincoln J” they asserted that the English legal principles can be implemented here. But later on this was turned down by the Court of Appeal and they went on to examine the issue of “conflict of laws” when concerned with the “recognition of foreign divorces”. It was determined that recognition was warranted for the Nevada divorce.

When concerned with “foreign annulment” cases, a crucial role is played by “physical defects”. As it was observed during “De Reneville v De Reneville”, the courts in England prefer to take a look at both parties' domicile in the early stages of a case. The case of “De Reneville v De Reneville” was pretty unique as the court determined the case of marriage on the basis of the husband’s domicile. In a similar case a woman from Italy married a guy from England. The woman was domiciled in Italy and its the same country where the marriage took place. English courts acknowledged the marriage. Later on, the husband went on to file a petition for nullity on the basis of “consummation”. But the problem is that as per the Italian laws, these reasons couldn't be used for “nullity”. That’s why because of the unavailability of Italian laws, the court went on to turn down the application of Italian law.

Apart from these elements, legal principles, upon which the 'recognition of foreign judgments' is based, have a deep impact upon the result of 'foreign annulments and divorces'. When concerned with the 'recognition of decision' the courts in England works in accordance with 3 schemes which are 'Brussels II bis, the Family Act 1986 Part III (for the rest of the world), and the Family Law Act 1984' . Recognition of matrimonial decrees from member states is also provided under Council Regulation 44/2001. However, in divorce matters or annulments, procedural or formal aspects are less significant.

It should be noted that the English courts, while determining the recognition or refusal of divorce proceedings, initially evaluate their validity in the country where they were awarded such as during 'D v D', the court went on to 'disregard the divorce proceedings because of the fact that the divorce was not recognized under Ghanaian law'. Additionally, considerations of habitual residence and domicile plays a significant role while acknowledging 'recognition or refusal of annulment and divorce matters'. Similarly, during 'Messina v Smith' on the basis that a 6 weeks residency in Nevada was needed, the court turned down the annulment. After the well known case 'Torok v Torok' it has been determined that 'nationality can also be a factor in the refusal of annulment or divorce recognition'.

Divorces other than proceedings do also have crucial recognition. For instance, in Quzi v Quazi, a husband got divorced under law of Pakistan. In order to make 'talag' or divorce effective, a written letter was needed to be sent. During the earlier stages of the case the court didn't call for 'proceedings'. The House of Lords didn't follow this. However, it should be noted that 'the proceedings can be started in one case if the law of the country of origin provided for it'. In this regard lets take a look at the case 'Chaudhary v Chaudhary' where it was determined by the court that the proceedings will not take place in England due to the fact that the issue wasn't dealt with efficiently in accordance with the 'law of the country obtained from'. Furthermore as per the case 'H v H', it was laid down that in order to start proceedings, the willingness of the state was needed. It is to be noted that during 'cases of transitional divorce matters, the English Court does not consider it effective in England per section 44 of the 1986 Act'. Due to the reason that some specific events took place in Pakistan or outside England's territory, the House of Lords considered that the proceedings won't take place in England during 'R v Secretary of State for the Home Department ex p Fatima'. The same case was in 'Berkovits v Grinberg'. Later on the court went on to state that 'for effective divorce in England there must be effectiveness in the country in which it is obtained per s.46(1)(a)'. At the end that matter that leads the 'English Courts' towards refusing to acknowledge 'divorce and foreign annulment' is the public policy. In Kendall v Kendall, the fraud perpetrated that made the court turn down the request to acknowledge the 'divorce matters in England'. The same case was in 'Gray v Formosa'. During this case, the court stated that 'if the foreign rule considers the matter invalid and objectionable, it would not be recognised in England as well'. Thus, the question concerned with refus(al) of foreign annulment and divorce by English Court is dependent on various issues i.e. factual as well as legal.

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