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The Recognition of Overseas Divorces under the Family Law Act 1975

Published online by Cambridge University Press:  24 January 2025

J. L. R. Davis
J. L. R. Davis*
Affiliation:
New Zealand and A.C.T.; Australian National University
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Type
Comment
Information
Federal Law Review , Volume 8 , Issue 2 , June 1977 , pp. 231 - 241
Copyright
Copyright © 1977 The Australian National University

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References

1 The text of the Draft Convention is set out in, inter alia, Appendix A of the English and Scottish Law Commissions' Report on the Hague Convention on Recognition of Divorces and Legal Separations Cmnd 4542 (1970).

2 Ibid.

2 fd. paras. 27 to 29.

4 The text of Part AA is set out in the Official Hansard Report of the meeting of the Senate Standing Committee of 6 July 1972, 54-59.

5 For a fuller account of the various stages leading up to the passage of this statute see Enderby, “The Family Law Act 1975” (1975) 49 A.L.J. 477, 477-478.

6 Supra, n. 3.

7 (1974) 1 W.L.R. 1631.

8 Hahlo and Kahn, The South African Law of Husband and Wife (3rd ed.1969) 525.

9 Official Hansard Report of the meeting of the Senate Standing Committee of 6 July 1972, 56.

10 [1973] 1W.L.R. 1066.

11 For a full discussion of the meaning of “natural justice” in this context, see the discussion by Fox J. of the predecessor of s. 104(4) in Norman v. Norman (No. 3) (1969) 16 F.L.R. 231, 244-245.

12 The literature on full faith and credit as applied to interState divorce decrees in America is considerable. Two comparatively recent discussions of the topic are Morris, “The Recognition of American Divorces in England” (1975) 24 International and Comparative Law Quarterly 635, 639-640 and Rheinstein, Marriage Stability, Divorce, and the Law (1972) 63-81, especially 78-79.

13 See Rabel, The Conflict of Laws: A Comparative Study (2nd ed., 1959) Vol. I, 462; Rheinstein, op. cit. 8; International Encyclopedia of Comparative Law (1974) Vol. IV, 1-101. Dissolution of marriage has been permitted in Italy since 1970: von Mehren and Nadelmann, “The Hague Conference Convention of June 1, 1970 on Recognition of Foreign Divorce Decrees” (1971) 5 Family Law Quarterly 303, 308, n. 26. The First Secretary of the Portuguese Embassy in Canberra recently informed the author that that country has, by a law of 27 May 1975, permitted any of its citizens to petition for dissolution of marriage.

14 Rabel, op. cit., 427 et seq

15 [1906] P. 135.

16 Supra 233-234.

17 The statement in the text is taken from the judgment of Ormrod J. in Messina v. Smith [1971] P. 322, 339.

18 British Nationality Act 1948, ss. 4, 5(1), 6(2), 12(1) and (2) (U.K.).

19 See also Morris, op. cit., who puts forward further views why only “bilateral” divorces obtained in the United States will be recognised under the Act of 1971.

20 See the text accompanying n. 11 on the meaning of the term “natural justice”in this context.

21 See Family Law Act 1975, s.104(4)(a) (Cth) and the discussion by Fox J. inNorman v. Norman (No. 3) (1969) 16 F.L.R. 231, 244-245 of the equivalent provisions in s. 95(7) of the Matrimonial Causes Act 1959 (Cth).

22 Rosenstiel v. Rosenstiel (1965) 209 N.E. 2d 709.

23 For further details of the Mexican Legislation see Juenger, “Recognition of Foreign Divorces-British and American Perspectives” (1972) 20 American Journal of Comparative Law 1, 22, n. 111.

24 The details of Haitian Law are taken from the judgment of McCaffrey J. inKraham v. Kraham (1973) 342 N.Y.S. 2d 943, 948

25 Kraham v. Kraham (1973) 342 N.Y.S. 2d 943. The decree was recognised for the purpose of sanctioning a mutually agreed increase in the alimony provisions contained therein, but there does not appear from the judgment any reason why such decrees would not be recognised for all purposes.

26 Kugler v.Haitian Tours, Inc. (1972) 293 A. 2d 706.

27 S. Deb. 1974, Vol. 62, 2031.

28 English and Scottish Law Commissions' Report, op.cit., especially paras 25 and 30.

29 “Current Legal Developments” (1976) 25 International and Comparative Law Quarterly 449.