By Lisa Ivanow LLB

The case of Hussain v Parveen highlights the importance in verifying that your overseas divorce is legally valid in your country of residence.

The Respondent, Ms Parveen, married her first husband, Mr Aslam, in Pakistan on 1^st November 2000. They lived together for several weeks before Mr Aslam moved to the United Kingdom without the Respondent. The marriage broke down and subsequently Mr Aslam pronounced talaq, Islamic divorce, in England on 10^th February 2008. The letter of pronouncement was given to the Respondent’s brother and consequently converted into a certificate of divorce at a mosque in Bradford on 10^th February 2008. The divorce certificate issued in Bradford was sent to the Respondent in Pakistan and further provided to the local Union Council in Pakistan. This procedure was in accordance with the Muslim Family Laws Ordinance in 1961 and therefore substituted a valid divorce in Pakistan.

The Respondent married the Petitioner, Mr Hussain, in Pakistan on 19^th December 2008. The Respondent moved to the UK on 28^th March 2009 and lived with the Petitioner. The marriage eventually broke down and the Petitioner argued that his marriage to the Respondent was void. The Petitioner contended that his marriage with the Respondent should be annulled on the grounds of bigamy as the transnational nature of the previous divorce meant that the Respondent and Mr Aslam were not legally divorced in the jurisdiction of England and Wales.

How do you validate your foreign divorce?

Fundamentally, you should ensure that your divorce proceedings have started and ended in the same country. This will ensure that your divorce was not transnational and therefore can be recognised under English and Welsh law.

If you are divorcing in the United Kingdom, you must obtain your divorce through a civil court for it to be valid. Religious divorces, such as through a Sharia Council, will not be recognised.

If your divorce is obtained in the European Union (EU) and is in accordance with the laws with the member state of the EU, it should automatically be recognised in England and Wales. This is solely applicable to those who applied for a divorce in an EU country before 11pm on 31 December 2020. A certified and properly translated certificate of divorce is valid across the whole of the EU.

From 1^st January 2021, your EU divorce will be recognised automatically if the EU member state where you obtained the divorce is a signatory of The Hague Divorce Recognition Convention 1970. These countries include: Cyprus, Czech Republic, Denmark, Estonia, Finland, Italy, Luxembourg, Netherlands, Poland, Portugal, Slovakia, Sweden and the United Kingdom.
Consequently, if your divorce is obtained from 1^st January 2021 in an EU member state which is not a signatory to The Hague Divorce Recognition Convention 1970, you must follow the rules for recognition of non-EU divorces in England and Wales.

If your divorce is obtained in a non-EU country, or an EU country that is not a signatory of The Hague Divorce Recognition Convention, recognition will depend on whether the divorce was obtained by way of “proceedings” or “other than by means of proceedings”. “Proceedings” require a formalised process involving the court in that country, see Family Law Act 1986 s 46(1). s 46(1). Meanwhile, “other than by means of proceedings” is a process involving a body other than a court, see Family Law Act 1986 s 46(2).

Written by Lisa Ivanow, Legal Assistant at Brady Harvey Legal. She holds a First-Class Honours LLB Degree from the University of Birmingham.