Divorce (conflict)
Encyclopedia
In modern society
, the role of marriage
and its termination through divorce
have become political issues. As people live increasingly mobile lives, the conflict of laws
and its choice of law
rules are highly relevant to determine:
orders for maintenance
and child support
, and for contact
with, and parental responsibility
for, any children of the family were administered through a relatively trouble-free system. But, as the borders between states became increasingly porous, people moved in search of employment, to build businesses or, simply, because they could. The marriage of people with different nationalities
or domiciles
therefore became more common. This has produced serious problems for the parties
and for the court systems which are now expected to accept jurisdiction
over persons sometimes only transiently within their territorial boundaries, and to enforce the judgment
s and orders of foreign courts. These more technical problems can be made worse by any personal animosity between the parties which contributed to the marital breakdown. In some more extreme cases, spouses move themselves and/or their assets to other jurisdictions to evade
their obligations or liabilities, or they move to establish personal jurisdiction so that they can engage in forum shopping
. Hence, suppose a German
man marries a Turkish
woman and they live in Poland
until the breakdown, at which point the wife goes to Nevada
because she has heard that the courts of the U.S. allow quick divorces and give generous maintenance and property settlement awards. When he hears of this plan, the husband moves himself and all his assets to the Republic of Ireland
because he has heard that Irish courts do not recognise and enforce U.S. divorce decrees and their ancillary orders.
and culture
are based, and guarantee to protect the institution in their constitution
s both as the source of social order and as indispensable to the future welfare of their nation
s. Hence, marriage tends to be treated as a moral
institution (with or without religious
significance) and those who achieve the status
of spouse are vested with a number of rights
which can only be varied or terminated by court order. A few states, usually because of their prevailing religion, either prohibit or discourage termination by divorce. But the majority of more secular states make no fault divorce a relatively automatic process to reflect the reality that the marriage has broken down, sometimes without the need for both parties to attend at a hearing. This has caused a major shift in social policy in many countries because, if divorce is no longer of major juridical significance in the majority of states around the world, the rules for the international recognition and enforcement of foreign divorces also no longer require cautiously framed rules.
are relevant in the general conflict system:
But the conflict rules must be consistent with the forum's domestic policies in relation to marriage. Hence, the further policy considerations are:
Although the law of the nationality may be reasonably easy to identify since it is often merely a matter of registration in the given country, a person may have, say, a Greek nationality but have had a permanent residence in New York State for twenty years without becoming a naturalised American. Insisting on a test under Greek law may not produce a fair or relevant result.
In the common law, marriage can produce a common domicile for the spouses with the wife taking the domicile of the husband. This rule is derived from the proposition that a dependent wife will follow her husband in all aspects of her life. Although this provides a convenient law which is usually easy to identify (since the requirements for change of domicile depend on demonstrating an intention to reside indefinitely in the state of choice, the domicile of the husband is difficult to change) it may produce a result in which a person is domiciled in one state but the matrimonial home and all other features of the parties' lives may be in a second state. This problem is aggravated by the rules relating to the revival of the domicile of origin when a domicile of choice is abandoned. For example, a husband with a domicile of origin in Japan
establishes a domicile of choice in China
where he marries a woman with a French
domicile. When the relationship breaks down, he abandons his home in China and goes to live in Singapore
. Immediately upon his leaving China, his Japanese domicile revives and his wife's domicile also changes to that of Japan even though she might never have set foot in that country. To avoid both the patriarchal
implications and potntially unfortunate legal consequences implicit in the domicile of dependence, many states have amended their laws to permit women to retain their domcile of origin upon marriage, or to establish a domicile of choice independently of the husband during the subsistence of the marriage. In cases where the spouses have different domiciles, the choice of law rule must refer to both lex domicilii.
Habitual residence may be a more satisfactory connecting factor than domicile because a person's long-term residence would appear to offer a more practical basis for recognition, whatever his or her intentions may be. Although intention is relevant to establishing a person's habitual residence, it is a less demanding test than for domicile. But it could lead to forum shopping with a Petitioner
living in a state only long enough to establish habitual residence under that state's law and so evade obligations or gain unfair advantages.
Within the European Union
, Regulation 2201/2003 (known as Brussels II) sets out the rules on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility
for children of both spouses except for orders relating to matrimonial property. Jurisdiction is allowed to the courts of the Member State in which one or both spouses had a common domicile, a common nationality
or were habitually resident. Once proceedings have been initiated, other states must refuse jurisdiction. Once a court accepts jurisdiction, it is for the lex fori to apply its own choice of law rules: the United Kingdom
and the Republic of Ireland
apply the lex domicilii; the other EU states apply the law of habitual residence.
ic forms of divorce known as the talaq
and its less well-regulated version of triple talaq, and the form of divorce in Judaism
known as the get
which is regulated by the Beth Din
(see http://www.jlaw.com/Articles/divorcebeit.html). Unlike the talaq, the process to obtain a get must occur at a specific place and with specified documents.
and in Pakistan
Occupied Kashmir
.
If the talaq is executed in a state where it is effective to terminate the marriage, this potentially affects the status
and capacity
of the spouses so that they are then free to remarry. Within the conflict system, the enforcement of foreign judgments
is a reasonably well-regulated area. But this form of divorce is only quasi-judicial at best, so it falls outside the normal rules. The general expectation as to choice of law depends on the characterization of the issue. As a form of divorce, the rule might be that the lex loci actus (the law of the place where the transaction took place) should be applied and recognised universally so that the parties would avoid a limping marriage (i.e. that whether they are considered married will change depending on which states they visit or reside in). However, this may be against public policy because one of the parties is seeking to evade some mandatory provisions of law or it is not in the best interests of any children (see parens patriae
). If the characterization is status/capacity, this will be determined under the lex domicilii (the law of the domicile) in a common law
state, and under the lex patriae (the law of the nationality) or habitual residence in a civil law
state. Alternatively, the court seized of the matter might apply the lex fori (the municipal law of the forum state).
The best answer is always to produce an in rem
solution, i.e. wherever possible, the result must be accepted in the majority of states around the world. Thus, if the talaq is effective under the lex loci actus and recognized under the laws relevant to determine status and capacity, it will be recognized so long as the best interests of the children are protected in any orders or agreements made by the parties. For example, in English law
, Part II of the Family Law Act 1986 draws the distinction between a divorce obtained by "judicial or other proceedings" and the divorce obtained "otherwise than by means of proceedings". The Nikah form is recognized in UK if:
But a "bare" talaq will only be recognized in UK if:
And no recognition will be allowed if one of the parties has been habitually resident in the UK throughout the period of one year immediately preceding the pronouncement. The intention is to prevent one spouse from evading the local judicial system by traveling to a country that does permit the talaq.
ese family law is designed to encourage the private resolution of family issues. Under the "family registration" (koseki) system, changes in family status and relationships do not require official approval. Article 763 of the Civil Code of Japan authorizes a husband and wife to divorce by mutual agreement (kyogi rikon divorces), and more than 90% of all Japanese divorces adopt this fast, simple and entirely non-judicial procedure. Kyogi rikon divorces are entirely non-judicial without the involvement of lawyers or any tribunal. The only requirements are that each spouse should sign a form, known as a rikon todoke, in front of two witnesses, and that the form should be filed with the local registration office. The parties do not need to make any appearance at the registry office. International couples may obtain a consent divorce in Japan if one of them is a Japanese citizen: Horei Law on the Application of Laws, Law No. 10 of 1898 (as amended 2001), Art. 16 (see (The author is a NY lawyer but has no legal training in Laws of Japan and the article should not be taken as legal advice.)). If the parties cannot agree, judicial divorces may be obtained through the court system.
Hence, for the standard consent divorce, there are no "proceedings" within the meaning of the Family Law Act 1986, but such divorces will be recognized if both spouses were domiciled in Japan at the time, and neither spouse was habitually resident in the UK for one year preceding the divorce. But if either spouse did not hold a Japanese domicile, it is likely that a UK court would not recognize the divorce.
. The only exceptions are that enforcement would breach public policy in some way, the maintenance order cannot be reconciled with another judgment, or the application to enforce is "out of time".
The United Nations
Convention on the Recovery Abroad of Maintenance Payments (the New York Convention) enables the transnational recovery of maintenance by creating a Central Authority for Maintenance Recovery in the Department of Justice, Equality and Law Reform which is responsible for transmitting and receiving maintenance claims under the Convention.
For information about the enforcement of foreign support awards in the United States see: The Enforcement of Foreign Awards in New York State
Quick Divorce in the Dominican Republic is available to foreigners or Dominican citizens residing abroad, when both spouses agree to file this divorce before Dominican Courts. This procedure is very simple and only requires the attendance of one of the spouses during the hearing which takes usually less than half an hour and you can leave Dominican Republic the same day in the afternoon. It takes ten to fifteen days to obtain your divorce decree, which is to be sent to your home or office by courier (DHL or FedEx).
The parties should sign a settlement agreement revised by an attorney in their jurisdiction in order to confirm it complies with spouses local laws. This document should include spouses complete data, a list of property, or statement of non-property, the statement regarding minor children and support agreement, your desire of divorcing before a Dominican Court and the authorization of one of the spouses to the other to attend to hearing on her/his behalf. The settlement agreement can be drafted by an attorney in your jurisdiction.
Society
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...
, the role of marriage
Marriage (conflict)
In conflict of laws, the issue of marriage has assumed increasing public policy significance in a world of increasing multi-ethnic, multi-cultural and multi-national relationships...
and its termination through divorce
Divorce
Divorce is the final termination of a marital union, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties...
have become political issues. As people live increasingly mobile lives, the conflict of laws
Conflict of laws
Conflict of laws is a set of procedural rules that determines which legal system and which jurisdiction's applies to a given dispute...
and its choice of law
Choice of law
Choice of law is a procedural stage in the litigation of a case involving the conflict of laws when it is necessary to reconcile the differences between the laws of different legal jurisdictions, such as sovereign states, federated states , or provinces...
rules are highly relevant to determine:
- the circumstances in which people may obtain divorces in states in which they have no permanent or habitual residenceHabitual residenceIn conflict of laws, habitual residence is the standard used to determine the law which should be applied to determine a given legal dispute. It can be contrasted with the law on domicile, traditionally used in common law jurisdictions to do the same thing....
; and - when one state will recognize and enforce a divorce granted in another state
The problems
When people's lives were mostly confined to a single state, local courtCourt
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
orders for maintenance
Alimony
Alimony is a U.S. term denoting a legal obligation to provide financial support to one's spouse from the other spouse after marital separation or from the ex-spouse upon divorce...
and child support
Child support
In family law and public policy, child support is an ongoing, periodic payment made by a parent for the financial benefit of a child following the end of a marriage or other relationship...
, and for contact
Contact (law)
In family law, contact is one of the general terms which denotes the level of contact a parent or other significant person in a child's life can have with that child...
with, and parental responsibility
Parental responsibility (access and custody)
In the nations of the European Union and elsewhere, parental responsibility refers to the rights and privileges which underpin the relationship between a child and either of the child's parents or those adults who have a significant role in the child's life...
for, any children of the family were administered through a relatively trouble-free system. But, as the borders between states became increasingly porous, people moved in search of employment, to build businesses or, simply, because they could. The marriage of people with different nationalities
Nationality
Nationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....
or domiciles
Domicile (law)
In law, domicile is the status or attribution of being a permanent resident in a particular jurisdiction. A person can remain domiciled in a jurisdiction even after they have left it, if they have maintained sufficient links with that jurisdiction or have not displayed an intention to leave...
therefore became more common. This has produced serious problems for the parties
Party (law)
A party is a person or group of persons that compose a single entity which can be identified as one for the purposes of the law. Parties include: plaintiff , defendant , petitioner , respondent , cross-complainant A party is a person or group of persons that compose a single entity which can be...
and for the court systems which are now expected to accept jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
over persons sometimes only transiently within their territorial boundaries, and to enforce the judgment
Enforcement of foreign judgments
In law, the enforcement of foreign judgments is the recognition and enforcement in one jurisdiction of judgments rendered in another jurisdiction...
s and orders of foreign courts. These more technical problems can be made worse by any personal animosity between the parties which contributed to the marital breakdown. In some more extreme cases, spouses move themselves and/or their assets to other jurisdictions to evade
Evasion (law)
In law, the Doctrine of Evasion is a fundamental public policy. Whereas a person may legitimately plan his or her affairs so as to avoid the incidence of obligations or liabilities imposed by the law, no-one is allowed to evade the operation of otherwise mandatory provisions once duties and...
their obligations or liabilities, or they move to establish personal jurisdiction so that they can engage in forum shopping
Forum shopping
Forum shopping is the informal name given to the practice adopted by some litigants to get their legal case heard in the court thought most likely to provide a favorable judgment...
. Hence, suppose a German
Germany
Germany , officially the Federal Republic of Germany , is a federal parliamentary republic in Europe. The country consists of 16 states while the capital and largest city is Berlin. Germany covers an area of 357,021 km2 and has a largely temperate seasonal climate...
man marries a Turkish
Turkey
Turkey , known officially as the Republic of Turkey , is a Eurasian country located in Western Asia and in East Thrace in Southeastern Europe...
woman and they live in Poland
Poland
Poland , officially the Republic of Poland , is a country in Central Europe bordered by Germany to the west; the Czech Republic and Slovakia to the south; Ukraine, Belarus and Lithuania to the east; and the Baltic Sea and Kaliningrad Oblast, a Russian exclave, to the north...
until the breakdown, at which point the wife goes to Nevada
Nevada
Nevada is a state in the western, mountain west, and southwestern regions of the United States. With an area of and a population of about 2.7 million, it is the 7th-largest and 35th-most populous state. Over two-thirds of Nevada's people live in the Las Vegas metropolitan area, which contains its...
because she has heard that the courts of the U.S. allow quick divorces and give generous maintenance and property settlement awards. When he hears of this plan, the husband moves himself and all his assets to the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
because he has heard that Irish courts do not recognise and enforce U.S. divorce decrees and their ancillary orders.
The concepts
The majority of states recognize the family as the natural grouping upon which societySociety
A society, or a human society, is a group of people related to each other through persistent relations, or a large social grouping sharing the same geographical or virtual territory, subject to the same political authority and dominant cultural expectations...
and culture
Culture
Culture is a term that has many different inter-related meanings. For example, in 1952, Alfred Kroeber and Clyde Kluckhohn compiled a list of 164 definitions of "culture" in Culture: A Critical Review of Concepts and Definitions...
are based, and guarantee to protect the institution in their constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...
s both as the source of social order and as indispensable to the future welfare of their nation
Nation
A nation may refer to a community of people who share a common language, culture, ethnicity, descent, and/or history. In this definition, a nation has no physical borders. However, it can also refer to people who share a common territory and government irrespective of their ethnic make-up...
s. Hence, marriage tends to be treated as a moral
Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
institution (with or without religious
Religion
Religion is a collection of cultural systems, belief systems, and worldviews that establishes symbols that relate humanity to spirituality and, sometimes, to moral values. Many religions have narratives, symbols, traditions and sacred histories that are intended to give meaning to life or to...
significance) and those who achieve the status
Status (law)
A person's status is a set of social conditions or relationships created and vested in an individual by an act of law rather than by the consensual acts of the parties, and it is in rem, i.e. these conditions must be recognised by the world. It is the qualities of universality and permanence that...
of spouse are vested with a number of rights
Rights
Rights are legal, social, or ethical principles of freedom or entitlement; that is, rights are the fundamental normative rules about what is allowed of people or owed to people, according to some legal system, social convention, or ethical theory...
which can only be varied or terminated by court order. A few states, usually because of their prevailing religion, either prohibit or discourage termination by divorce. But the majority of more secular states make no fault divorce a relatively automatic process to reflect the reality that the marriage has broken down, sometimes without the need for both parties to attend at a hearing. This has caused a major shift in social policy in many countries because, if divorce is no longer of major juridical significance in the majority of states around the world, the rules for the international recognition and enforcement of foreign divorces also no longer require cautiously framed rules.
Relevant policies
Three public policiesPublic policy (law)
In private international law, the public policy doctrine or ordre public concerns the body of principles that underpin the operation of legal systems in each state. This addresses the social, moral and economic values that tie a society together: values that vary in different cultures and change...
are relevant in the general conflict system:
- Avoiding so-called “limping marriages”. Wherever possible, there should be international uniformity in defining a person's marital statusStatus (law)A person's status is a set of social conditions or relationships created and vested in an individual by an act of law rather than by the consensual acts of the parties, and it is in rem, i.e. these conditions must be recognised by the world. It is the qualities of universality and permanence that...
so that people will not be treated as married under the law of one state, but not married under the law of another. However, there may be situations in which it would be quite unjust and inappropriate for the courts of one state to be bound by another state's laws as to status (see below). - Favor matrimonii upholds the validity of all marriages entered into with a genuine commitment. But, as states become increasingly secular and allow the termination of marriage through no fault divorce and other less confrontational mechanisms, the policy for recognition and enforcement of foreign decrees may be changing from favor matrimonii to favor divortii (i.e. upholding the validity of the divorce wherever possible).
- Wherever possible, the results of any litigation should give effect to the legitimate expectations of the parties as to the validity or termination of their marriage.
- That the application of all rules should, wherever possible, produce predictable and appropriate outcomes. There is a clear benefit that laws should be certain and easy to administer. Courts have the benefit of expert evidence and time in which to conduct their legal analysis. But the same issues arise far more often in everyday situations where immigration officers, social welfare and tax authorities, and businesses will have to decide whether persons claiming an eligibility or a liability based on their status as a spouse are validly married. If conflict rules are obscure and complicated, this can result in real difficulties for all involved.
But the conflict rules must be consistent with the forum's domestic policies in relation to marriage. Hence, the further policy considerations are:
- Even though policies related to community life reflect the views, opinions, and the prejudices of that community, local laws have a strong claim to specify the formal requirements for marriages celebrated within their jurisdictionJurisdictionJurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
(this is, after all, the reason that the lex loci celebrationisLex loci celebrationisThe lex loci celebrationis is the Latin term for "law of the place where the marriage is celebrated" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are...
is usually accepted as the law to determine all formal requirements for the marriage). For example, the public interest requires that marriage ceremonies are performed openly and with due publicity, with all valid marriages properly recorded. - The public policy underpinning the lex foriLex foriLex fori is a legal term used in the conflict of laws used to refer to the laws of the jurisdiction in which a legal action is brought...
(the law of the forum court) will allow the court to ignore foreign limitations on the right to marry which are considered offensive, e.g. those based on differences of race or ethnic origin, or which allow persons of the same biological sex the capacityCapacity (law)The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
to marry. However, some states go further, e.g. in the United StatesUnited StatesThe United States of America is a federal constitutional republic comprising fifty states and a federal district...
, section 283 Second Restatement of Conflict of Laws provides:
-
- A marriage which satisfies the requirements of the state where the marriage was contracted will everywhere be recognised as valid unless it violates the strong public policy of another state which had the most significant relationship to the spouses and the marriage at the time of the marriage.” i.e. it introduces a form of proper law test of policy which could potentially lead to the application of a third state's policies which is a confusing possibility.
Legal termination of marriage
A distinction must be made between forms of divorce that are based in a court system administered under a system of law, and divorces that take place in quasi- or extrajudicial setting, i.e. without any formal supervision from the local court system. In both cases, once jurisdiction has been established, the lex fori will be applied to determine whether the local ground(s) of divorce have been satisfied and, if so, the marriage will be terminated with or without ancillary orders being made.Judicial proceedings
Since this is an issue affecting the status of the parties, the standard choice of law rules would be either:- the lex patriaeLex patriaeThe term lex patriae is Latin for the law of nationality in the conflict of laws which is the system of public law applied to any lawsuit where there is a choice to be made between several possibly relevant laws and a different result will be achieved depending on which law is...
(the law of nationality) or habitual residence applied in the civil lawCivil law (legal system)Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
courts (see Article 1 Hague Convention on Recognition of Divorces and Legal Separations 1970); or - the lex domiciliiLex domiciliiThe lex domicilii is the Latin term for "law of the domicile" in the conflict of laws. Conflict is the branch of public law regulating all lawsuits involving a "foreign" law element where a difference in result will occur depending on which laws are applied....
(the law of the domicile) applied in the common lawCommon lawCommon law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
courts.
Although the law of the nationality may be reasonably easy to identify since it is often merely a matter of registration in the given country, a person may have, say, a Greek nationality but have had a permanent residence in New York State for twenty years without becoming a naturalised American. Insisting on a test under Greek law may not produce a fair or relevant result.
In the common law, marriage can produce a common domicile for the spouses with the wife taking the domicile of the husband. This rule is derived from the proposition that a dependent wife will follow her husband in all aspects of her life. Although this provides a convenient law which is usually easy to identify (since the requirements for change of domicile depend on demonstrating an intention to reside indefinitely in the state of choice, the domicile of the husband is difficult to change) it may produce a result in which a person is domiciled in one state but the matrimonial home and all other features of the parties' lives may be in a second state. This problem is aggravated by the rules relating to the revival of the domicile of origin when a domicile of choice is abandoned. For example, a husband with a domicile of origin in Japan
Japan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
establishes a domicile of choice in China
China
Chinese civilization may refer to:* China for more general discussion of the country.* Chinese culture* Greater China, the transnational community of ethnic Chinese.* History of China* Sinosphere, the area historically affected by Chinese culture...
where he marries a woman with a French
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
domicile. When the relationship breaks down, he abandons his home in China and goes to live in Singapore
Singapore
Singapore , officially the Republic of Singapore, is a Southeast Asian city-state off the southern tip of the Malay Peninsula, north of the equator. An island country made up of 63 islands, it is separated from Malaysia by the Straits of Johor to its north and from Indonesia's Riau Islands by the...
. Immediately upon his leaving China, his Japanese domicile revives and his wife's domicile also changes to that of Japan even though she might never have set foot in that country. To avoid both the patriarchal
Patriarchy
Patriarchy is a social system in which the role of the male as the primary authority figure is central to social organization, and where fathers hold authority over women, children, and property. It implies the institutions of male rule and privilege, and entails female subordination...
implications and potntially unfortunate legal consequences implicit in the domicile of dependence, many states have amended their laws to permit women to retain their domcile of origin upon marriage, or to establish a domicile of choice independently of the husband during the subsistence of the marriage. In cases where the spouses have different domiciles, the choice of law rule must refer to both lex domicilii.
Habitual residence may be a more satisfactory connecting factor than domicile because a person's long-term residence would appear to offer a more practical basis for recognition, whatever his or her intentions may be. Although intention is relevant to establishing a person's habitual residence, it is a less demanding test than for domicile. But it could lead to forum shopping with a Petitioner
Petitioner
A petitioner is a person who pleads with governmental institution for a legal remedy or a redress of grievances, through use of a petition.-In the courts:The petitioner may seek a legal remedy if the state or another private person has acted unlawfully...
living in a state only long enough to establish habitual residence under that state's law and so evade obligations or gain unfair advantages.
Within the European Union
European Union
The European Union is an economic and political union of 27 independent member states which are located primarily in Europe. The EU traces its origins from the European Coal and Steel Community and the European Economic Community , formed by six countries in 1958...
, Regulation 2201/2003 (known as Brussels II) sets out the rules on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility
Parental responsibility (access and custody)
In the nations of the European Union and elsewhere, parental responsibility refers to the rights and privileges which underpin the relationship between a child and either of the child's parents or those adults who have a significant role in the child's life...
for children of both spouses except for orders relating to matrimonial property. Jurisdiction is allowed to the courts of the Member State in which one or both spouses had a common domicile, a common nationality
Nationality
Nationality is membership of a nation or sovereign state, usually determined by their citizenship, but sometimes by ethnicity or place of residence, or based on their sense of national identity....
or were habitually resident. Once proceedings have been initiated, other states must refuse jurisdiction. Once a court accepts jurisdiction, it is for the lex fori to apply its own choice of law rules: the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
and the Republic of Ireland
Republic of Ireland
Ireland , described as the Republic of Ireland , is a sovereign state in Europe occupying approximately five-sixths of the island of the same name. Its capital is Dublin. Ireland, which had a population of 4.58 million in 2011, is a constitutional republic governed as a parliamentary democracy,...
apply the lex domicilii; the other EU states apply the law of habitual residence.
Quasi- or extra-legal proceedings
The most common forms of quasi-legal divorce are the IslamIslam
Islam . The most common are and . : Arabic pronunciation varies regionally. The first vowel ranges from ~~. The second vowel ranges from ~~~...
ic forms of divorce known as the talaq
Talaq (Nikah)
In Islam there are separate rules for divorce for men and women under the terms of Islamic law . When a man has initiated a divorce the procedure is called . When a woman has initiated a divorce it is called khula ....
and its less well-regulated version of triple talaq, and the form of divorce in Judaism
Judaism
Judaism ) is the "religion, philosophy, and way of life" of the Jewish people...
known as the get
Get (conflict)
A get or gett is the Jewish form of divorce which, when one is available in the state of residence, is supervised by a Beth Din , a rabbinical court...
which is regulated by the Beth Din
Beth din
A beth din, bet din, beit din or beis din is a rabbinical court of Judaism. In ancient times, it was the building block of the legal system in the Biblical Land of Israel...
(see http://www.jlaw.com/Articles/divorcebeit.html). Unlike the talaq, the process to obtain a get must occur at a specific place and with specified documents.
The talaq
For a discussion of the relationship between the talaq and secular laws, see talaq in non-Islamic states. Otherwise, there is a clear public policy need to consider whether, in an increasingly multi-racial and multi-ethnic society, transnational Islamic divorces can or should be recognized. For these purposes, a distinction is usually drawn between the Nikah form of talaq which is the normative form of procedural talaq, and the classical bare form of talaq which is used in IndiaIndia
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
and in Pakistan
Pakistan
Pakistan , officially the Islamic Republic of Pakistan is a sovereign state in South Asia. It has a coastline along the Arabian Sea and the Gulf of Oman in the south and is bordered by Afghanistan and Iran in the west, India in the east and China in the far northeast. In the north, Tajikistan...
Occupied Kashmir
Kashmir
Kashmir is the northwestern region of the Indian subcontinent. Until the mid-19th century, the term Kashmir geographically denoted only the valley between the Great Himalayas and the Pir Panjal mountain range...
.
If the talaq is executed in a state where it is effective to terminate the marriage, this potentially affects the status
Status (law)
A person's status is a set of social conditions or relationships created and vested in an individual by an act of law rather than by the consensual acts of the parties, and it is in rem, i.e. these conditions must be recognised by the world. It is the qualities of universality and permanence that...
and capacity
Capacity (law)
The capacity of both natural and legal persons determines whether they may make binding amendments to their rights, duties and obligations, such as getting married or merging, entering into contracts, making gifts, or writing a valid will...
of the spouses so that they are then free to remarry. Within the conflict system, the enforcement of foreign judgments
Enforcement of foreign judgments
In law, the enforcement of foreign judgments is the recognition and enforcement in one jurisdiction of judgments rendered in another jurisdiction...
is a reasonably well-regulated area. But this form of divorce is only quasi-judicial at best, so it falls outside the normal rules. The general expectation as to choice of law depends on the characterization of the issue. As a form of divorce, the rule might be that the lex loci actus (the law of the place where the transaction took place) should be applied and recognised universally so that the parties would avoid a limping marriage (i.e. that whether they are considered married will change depending on which states they visit or reside in). However, this may be against public policy because one of the parties is seeking to evade some mandatory provisions of law or it is not in the best interests of any children (see parens patriae
Parens patriae
Parens patriae is Latin for "parent of the nation." In law, it refers to the public policy power of the state to intervene against an abusive or negligent parent, legal guardian or informal caretaker, and to act as the parent of any child or individual who is in need of protection...
). If the characterization is status/capacity, this will be determined under the lex domicilii (the law of the domicile) in a common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
state, and under the lex patriae (the law of the nationality) or habitual residence in a civil law
Civil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
state. Alternatively, the court seized of the matter might apply the lex fori (the municipal law of the forum state).
The best answer is always to produce an in rem
In rem
In rem is Latin for "against a thing." In a lawsuit, an action in rem is directed towards a piece of property rather than against a person . The action disputes or seeks to transfer title to property. When title to real estate In rem is Latin for "against a thing." In a lawsuit, an action in rem...
solution, i.e. wherever possible, the result must be accepted in the majority of states around the world. Thus, if the talaq is effective under the lex loci actus and recognized under the laws relevant to determine status and capacity, it will be recognized so long as the best interests of the children are protected in any orders or agreements made by the parties. For example, in English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, Part II of the Family Law Act 1986 draws the distinction between a divorce obtained by "judicial or other proceedings" and the divorce obtained "otherwise than by means of proceedings". The Nikah form is recognized in UK if:
- it is effective by the lex loci actus (the law of the place where it was obtained), and
- at the relevant date, either party was:
-
- habitually resident in,
- domiciled either in accordance with the local law or English law, or
- a national of that foreign country.
But a "bare" talaq will only be recognized in UK if:
- it is effective by the law of the country where it was obtained and
- at the relevant date, each party was domiciled in that country (or if only one was domiciled in that country, then the other was domiciled in another country where the bare talaq was recognized).
And no recognition will be allowed if one of the parties has been habitually resident in the UK throughout the period of one year immediately preceding the pronouncement. The intention is to prevent one spouse from evading the local judicial system by traveling to a country that does permit the talaq.
The get
The discussion as to choice of law for the talaq is the same and, applying the Family Law Act 1986, the get qualifies under the first limb as "judicial or other proceedings".Japanese divorce
JapanJapan
Japan is an island nation in East Asia. Located in the Pacific Ocean, it lies to the east of the Sea of Japan, China, North Korea, South Korea and Russia, stretching from the Sea of Okhotsk in the north to the East China Sea and Taiwan in the south...
ese family law is designed to encourage the private resolution of family issues. Under the "family registration" (koseki) system, changes in family status and relationships do not require official approval. Article 763 of the Civil Code of Japan authorizes a husband and wife to divorce by mutual agreement (kyogi rikon divorces), and more than 90% of all Japanese divorces adopt this fast, simple and entirely non-judicial procedure. Kyogi rikon divorces are entirely non-judicial without the involvement of lawyers or any tribunal. The only requirements are that each spouse should sign a form, known as a rikon todoke, in front of two witnesses, and that the form should be filed with the local registration office. The parties do not need to make any appearance at the registry office. International couples may obtain a consent divorce in Japan if one of them is a Japanese citizen: Horei Law on the Application of Laws, Law No. 10 of 1898 (as amended 2001), Art. 16 (see (The author is a NY lawyer but has no legal training in Laws of Japan and the article should not be taken as legal advice.)). If the parties cannot agree, judicial divorces may be obtained through the court system.
Hence, for the standard consent divorce, there are no "proceedings" within the meaning of the Family Law Act 1986, but such divorces will be recognized if both spouses were domiciled in Japan at the time, and neither spouse was habitually resident in the UK for one year preceding the divorce. But if either spouse did not hold a Japanese domicile, it is likely that a UK court would not recognize the divorce.
Maintenance
In the EU, Regulation 44/2001 of 22 December 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (known as Brussels I) and Regulation 805/2004 of 21 April 2004 in respect of Uncontested Claims allow the almost automatic enforcement of all orders affecting maintenance when the parties are domiciled or habitually resident in the Member States with the exception of DenmarkDenmark
Denmark is a Scandinavian country in Northern Europe. The countries of Denmark and Greenland, as well as the Faroe Islands, constitute the Kingdom of Denmark . It is the southernmost of the Nordic countries, southwest of Sweden and south of Norway, and bordered to the south by Germany. Denmark...
. The only exceptions are that enforcement would breach public policy in some way, the maintenance order cannot be reconciled with another judgment, or the application to enforce is "out of time".
The United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
Convention on the Recovery Abroad of Maintenance Payments (the New York Convention) enables the transnational recovery of maintenance by creating a Central Authority for Maintenance Recovery in the Department of Justice, Equality and Law Reform which is responsible for transmitting and receiving maintenance claims under the Convention.
For information about the enforcement of foreign support awards in the United States see: The Enforcement of Foreign Awards in New York State
Quick Divorce in the Dominican Republic is available to foreigners or Dominican citizens residing abroad, when both spouses agree to file this divorce before Dominican Courts. This procedure is very simple and only requires the attendance of one of the spouses during the hearing which takes usually less than half an hour and you can leave Dominican Republic the same day in the afternoon. It takes ten to fifteen days to obtain your divorce decree, which is to be sent to your home or office by courier (DHL or FedEx).
The parties should sign a settlement agreement revised by an attorney in their jurisdiction in order to confirm it complies with spouses local laws. This document should include spouses complete data, a list of property, or statement of non-property, the statement regarding minor children and support agreement, your desire of divorcing before a Dominican Court and the authorization of one of the spouses to the other to attend to hearing on her/his behalf. The settlement agreement can be drafted by an attorney in your jurisdiction.