Divorce Convention PDF

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1970 Hague Divorce Convention,
What problems may occur if you relocate to a different country and it doesn’t recognise the divorce in a previous country?...

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Divorce

1970 Hague Divorce Convention CONVENTION ON THE RECOGNITION OF DIVORCES AND LEGAL SEPERATIONS: https://assets.hcch.net/docs/bdb59a0f-9405-4910-9dc3b7e5310405cc.pdf Article 1 states: The present Convention shall apply to the recognition in one Contracting State of divorces and legal separations obtained in another Contracting State which follow judicial or other proceedings officially recognised in that State and which are legally effective there. The Convention does not apply to findings of fault or to ancillary orders pronounced on the making of a decree of divorce or legal separation; in particular, it does not apply to orders relating to pecuniary obligations or to the custody of children. Reference: J Holliday, ‘The urgent need for the UK to accept the accessions of EU and Non-EU Contracting Parties to the 1970 Hague Convention on Recognition of Divorces and Legal Separation.' (Working Paper 2019/1) available at: https://www.stir.ac.uk/about/faculties/arts-humanities/law-andphilosophy/law-research/law-working-papers/ “Compared to the visible preparation for a no deal Brexit conducted by the United Kingdom’s Ministry of Justice to ensure the UK’s continued participation in the 2007 Hague Maintenance Convention and the 2005 Hague Choice of Court Agreements Convention, it would appear that no one has been keeping an eye on the ball when it comes to the Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations” “The Scottish Government has also stated that in the event of no deal, that “Scotland would rely on international (Hague) Conventions in relation to recognition and enforcement of overseas orders.” Divorce Seminar What problems may occur if you relocate to a different country and it doesn’t recognise the divorce in a previous country? - Attempting to remarry - Still, be regarded as being married (not able to move on) - Financial impact - Impact on children of a new relationship Alexander Anton’s negotiations of the convention (to read) part of the 1970 convention.

● Aims are to facilitate recognition of divorces and legal separation obtained in one contracting state that was obtained in another. ● Simplifies the possibility of remarriage and clarifies the legal relationship of the couple concerned, a factor which can prove very important for dependent children of a new relationship. ● Article 1 of Convention (preamble) Had to find a novel solution to this issue. The previous convention had worked on a direct jurisdiction approach when the convention applies it’ll be the jurisdiction of the contracting state where the recognition of the divorce would be considered. Indirect jurisdiction - this was an approach used because of the difficulty in getting states to agree to accept direct jurisdiction. May have to abandon their own jurisdiction in favour of accepting another. Not easy to persuade countries to do. So the least contentious method of resolving this issue is for the convention to focus on pure rules that relate to the person and only relevant for the purpose of recognition and enforcement don’t bind the state of origin. Just an effective method of resolving the problem. No definition of divorce within the convention. Article 2-5 contains rules in relation to indirect jurisdiction. > because of the simplicity of it, not contentious. > out of the 25 states party to the negotiation process of the convention, 10 of those states were simultaneously writing a civil law solution for this problem. Including France and Germany. Not focused on producing the common law/civil law unification of private international law solution. Or identifying the global solution. 20 contracting states, however, don’t all have a reciprocal arrangement. Only 4 out of the 10 doing the civil law solution actually ratified it. France and Germany amongst the ones that didn’t ratify it. Significantly less than childrens conventions. Could be as its an adult convention? No review of the convention in 50 years it has been there. There is a disparity in the way they handle adult conventions vs. childrens

Perhaps maybe putting adult conventions back on the table for the assessment? One of the weaknesses is that the Hague Conference is not caring for the convention, but not reviewing pushing or promoting it. They should be saying to the contracting states that this is a perfectly good convention and they should be asking them why they haven’t acceded to it. Would be good to generate the approach of promoting people doing things that benefit others. Who does the UK have a relationship with? Jayne’s article highlighted that the UK did not have reciprocal (or accepted) Poland, Estonia, Albania and Moldova. Minimises the possibility of limping marriages which can cause a massive problem for people. The UK has ignored the 4 countries coming in, and hasn’t accepted the accessions. Perhaps because it didn’t need to accept from Poland and Estonia (because there were EU solutions to this problem) The issue there is for the UK perspective, what were they doing to prepare or Brexit? Ministry of justice - did nothing about working papers? But told them to utilise the 1970 convention once through Brexit. Lacked the knowledge of PIL, even those in charge (not a specialist) The UK hasn’t accepted accessions still, the working paper was picked up by leading practitioners in London, they said that the MOJ said they would do so now before December. However, the MOJ has continually requested the EU accede to the 1970 convention on behalf of all the member states. Envisages combating “forum shopping” in the field of divorce The problem associated between a country not recognising the divorce not able to move on and remarry. Still a major problem “Forum shopping” having their legal case heard in the court thought most likely to provide a favourable judgment. This is an issue for individuals who are connected to more than one legal system

Hague conference trying to resolve this issue since the beginning. “Other proceedings” via the case law Quazi v Quazi ‘Other proceedings’ widely as ‘any proceedings other than judicial proceedings’ provided they were effective, as required by the Act, under the laws of the country in which they were obtained. - lord salmon Alfadal v Alfadal Chowdry v Chowdry Talak (a Muslim divorce) of husbands was not recognised. Husband accused of forum shopping. No evidence of this. Was recognised by an English court. HvH Divorce by Kyogirikon (Japanese divorce case)...