Illegal to divorce in the Philippines - is this about to change and how does England recognise overseas divorces?

Divorce is currently permitted in all jurisdictions worldwide, save for two. Those two are the Philippines and Vatican City and the objection in both is on religious grounds.100% of the population of Vatican City is Roman Catholic and all citizens are considered to be influential or significant in some way within Catholicism so the position is unlikely to change there any time soon. More than 80% of the population in the Philippines is Christian, the vast majority being Catholic. To date, divorce has not been possible in the Philippines even in cases of domestic abuse. The only routes available have been either religious annulment, legal separation (which does not dissolve the marriage) or, for Muslims, divorce under the Code of Muslim Personal Laws of the Philippines, but not for those who married under the Civil Code. 

But it appears that that might all be about to change. 

On 22 May the House of Representatives in the Philippines passed the Absolute Divorce Bill (as compared to legal separation which is sometimes called “relative divorce”) and it is now due for consideration by the Senate. The proposal is highly contentious and divisive with religious conservatives concerned that such a law undermines the very fabric of society by threatening family life and posing an existential threat to the institution of marriage. On the other side of the argument are a large number of civil rights campaigners, especially women’s rights groups, who consider the right to divorce of fundamental importance, particularly for survivors trapped in domestically abusive marriages. The vote is finely balanced and we shall have to wait to see whether President Ferdinand Marcos Jr holds good on his openness to legalise divorce when he came to office in 2022.

The last country to legalise divorce was Malta in 2011 following a referendum the same year. Whilst consideration of divorce reform and availability feeds the writer’s rather unusual fascination with the topic, it also prompts consideration of an important point that can arise closer to home, namely when will an overseas divorce be recognised in England? 

But why does this matter in the first place?

There are a large number of reasons why the recognition of foreign divorces may be relevant. Most obviously, perhaps, is the right to be able to remarry, but it can also have an impact on testamentary provisions, nationality, immigration and the right to receive pension and/or welfare benefits, amongst others. Whether or not there has been a divorce, can also impact on the appropriate route for a potential financial remedy in England, if jurisdiction exists. If there has not been a valid overseas divorce, but there is jurisdiction to divorce in England, then standard divorce proceedings can commence with a consequential claim for financial remedies. However, if there has already been a valid divorce in another jurisdiction, that may still pave the way to bring a claim in England under the Matrimonial and Family Proceedings Act 1984 for financial relief following an overseas divorce in an appropriate case (although see also further below). The relevance of this can be significant given the reputation the English courts have acquired as the “divorce capital of the world”.

When considering whether or not a foreign divorce will be recognised in England, we must look to the provisions of the Family Law Act 1986 which separates out a different approach according to whether there has been a divorce “by means of proceedings” or “otherwise than by means of proceedings.” What do these two phrases mean?

If there has been some involvement by a court or other impartial formal body recognised by the relevant state, that shall satisfy the English court that the divorce was obtained by means of judicial or other proceedings.  In such circumstances the divorce shall be recognised by the English court provided (a) it is effective under the law of the relevant country and (b) at the time proceedings commenced either party to the marriage was either habitually resident in, domiciled in or a national of the relevant country. In this context it can be important to obtain expert evidence about whether the overseas process involves proceedings or not and whether the divorce is effective in that jurisdiction.

So far so straightforward.  But what of a divorce “otherwise than by means of proceedings”?  The most common example of this is the Talaq which is one of the ways to dissolve a marriage under Islamic law; at its most basic a ‘bare Talaq’ can simply require the husband to pronounce verbally his intention to divorce in the presence of witnesses.  In fact most Islamic countries now require some additional formal registration of the Talaq which may import a “proceedings” element and so certainly simplifies matters when considering its recognition under English law, but historically the process has made for a number of fascinating judicial decisions.

Where there is a non-proceedings divorce, the English courts will recognise the overseas divorce if (a) it is effective under the law of the country in which it was obtained and (b) at the time it was obtained (i) either party to the marriage was domiciled in the relevant country or (ii) either party was domiciled there and the other was domiciled in a country under whose law it would have been recognised as being valid; and (b) neither party was habitually resident in the UK throughout the period of a year immediately preceding that date. Clearly it can be even more important to obtain expert evidence about the position in the relevant overseas jurisdiction in these cases.

Even more complex is the situation where you have a ‘transnational divorce” where part of the process takes place in one country and part in another.  So, for example, where there is a “proceedings” divorce but, say, the Talaq is pronounced in one country and registration is completed in another, that will not suffice for the purposes of the 1996 Act and the divorce would not be recognised by the English courts. Similarly, in Sulaiman v Juffali [2002] 1 FLR 479, the bare Talaq (“non-proceedings divorce”) was pronounced in England but registered with the Sharia Court in Saudi Arabia. Although this was recognised as a valid dissolution of the marriage under Sharia law and where the parties were domiciled, the Talaq did not amount to proceedings in the UK and the divorce was not recognised in the UK. 

To add further complication, it seems that the Matrimonial and Family Proceedings Act will only permit a claim for financial relief after an overseas divorce if that divorce were obtained by means of judicial or other proceedings (see s.12(1)(a) of the Act and Mostyn J’s obiter comments at paragraph 10 of MET v HAT [2013] EWHC 4247 (Fam)).

As ever, these cases are highly technical, very fact specific and require specialist legal advice particularly bearing in mind that the consequences of the decision can be very significant. Whatever position the English courts take, it will be a hugely important and significant step if the Philippines does follow the rest of the world by introducing a route to permit divorce. Although no breath is being held in respect of Vatican City following suit.