Divorce (conflict)
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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:
- the circumstances in which people may obtain divorces in states in which they have no permanent or habitual residence; and
- when one state will recognise and enforce a divorce granted in another state
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The problems
When people's lives were mostly confined to a single state, local court orders for maintenance and child support, and for access to, 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 judgments and orders of foreign courts. These more technical problems are made worse by the levels of personal animosity between the parties which caused 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 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.
The concepts
The majority of states recognise the family as the natural grouping upon which society and culture are based, and guarantee to protect the institution in their constitutions as the source of social order and as indispensable to the future welfare of the nation. 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 restrict 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.
Hence, four key questions need to be addressed:
- what are the relevant public policies?
- on what basis should states accept jurisdiction over Family Law cases?
- if jurisdiction is accepted, what choice of law rules should be applied?
- how should decisions made in one country be implemented in another?
Relevant policies
Three public policies 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 status 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, the results of any litigation should give effect to the legitimate expectations of the parties as to the validity 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 jurisdiction (this is, after all, the reason that the lex loci celebrationis 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 fori (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 capacity to marry. However, some states go further, e.g. in the United States, 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 extra-judicial 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.
The legal issues affecting recognition and enforcement
Judicial proceedings
Since this is an issue affecting the status of the parties, the standard choice of law rules would be either:
- the lex patriae (the law of nationality) or habitual residence applied in the civil law courts (see Article 1 Hague Convention on Recognition of Divorces and Legal Separations 1970); or
- the lex domicilii applied in the common law 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 usually produces a common domicile for the spouses with the wife taking the domicile of the husband. Although this provides a 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, domicile 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 he leaves 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.
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, i.e. the law of parties' domicile; the other EU states apply the law of habitual residence.
Quasi- or extra-legal proceedings
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 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 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.
