Divorce Decree In Divorce

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PREFER THE RECOGNITION RULE 1. Theoretical Basis It may be contested that, where the foreign decree is recognized, the forum’s recognition policy should be applied to its logical conclusion by giving 'full effect' to the foreign divorce decree. Ackner L.J. expresses the logic as follows, "I consider that it is plainly inconsistent with recognizing a divorce to say in the same breath that the marriage which it purported to dissolve still continues in existence. Such recognition would be a hollow and empty gesture" Rationally one assumes that it is necessary to allow remarriage in order to give 'full effect to a matrimonial decree.’ The basis for selecting the recognition rule where the decree is not recognized is not very clear. It has…show more content…
This was the basis of Sir David Cairn's judgment, which is narrower on this point than Ackner L.J.'s. Since the divorce in the Brentwood Marriage case was recognized under the common law prior to the 1971 Act, this conclusion did not follow there. Secondly, Lawrence concerned the ex post facto recognition of a second marriage which had already taken place whereas the Brentwood case concerned the question of a prior permission to remarry. It might be argued that the policy of giving 'full effect' to the foreign divorce is more important where the parties have already relied on that divorce in order to affect a second marriage which has taken place. However, it is clear that neither of the majority in Lawrence purported to make such a distinction. Therefore we can conclude that both of these apparent distinctions merely attempt to hide the fact that the policy in these two cases is completely opposite. In the Brentwood case , precedence was accorded to the domicile choice rule; whereas in Lawrence precedence was accorded to the recognition rule. This conclusion can be supported by reference to the case of…show more content…
This purports to apply the recognition rule where the remarriage takes place in England after a foreign decree. Thus, the common law preference for the choice rule would have remained applicable where the remarriage was abroad or the remarriage followed an English decree or the remarriage followed a foreign nullity (as opposed to divorce) decree. It has already been seen that whilst section 50 Family Law Act 1986 removes the above distinctions in respect of marriage following divorces which are recognized, it maintains the silence of section 7 of the 1971 Act in respect of decrees which are not recognized. Thus, we are again left with a differential approach. Where the divorce is recognized, the recognition rule is applied. Where the divorce is not recognized by the forum, the choice rule is

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