Arthur has reached a position with his life where he wishes to put the past behind him and move forward with his new partner Percival, however he was previously married to Guinevere and their divorce may not be recognized in Australia. This could grind to a halt Arthur’s plan to enter into a ‘significant relationship’ with his new partner. The law in Australia does accommodate the recognition of foreign decrees, but there are conditions that need to be met.
Outline:
The following report will analyse Arthur’s current position by investigating the circumstances leading up to his marriage to Guinevere and their subsequent divorce. It will also analyse the recognition of their marriage and divorce from a common law and statutory position to arrive at a conclusion regarding whether their Mexican divorce will be recognized in Australia.
1. The Divorce of Arthur and Guinevere:
Arthur is seeking guidance on whether a Mexican divorce between himself and his partner Guinevere would be recognized in Australia. Arthur is an Australian citizen who met Guinevere, a Canadian citizen, in Canada in 1996 and the pair married that year whilst holidaying in Acapulco, Mexico.
In 1997 the couple returned to Australia and Guinevere became domiciled, taking Australian citizenship in 2000. She maintained her Canadian citizenship.
In 2008 Guinevere left Arthur after confessing to having an affair. She returned to Canada with her new partner Lancelot. In June 2009 she obtained a divorce from Arthur in a Mexican court.
Arthur is now seeking advice on whether this divorce would be recognized in Australia, as he too has met someone; Percival, and wishes to enter into a ‘significant relationship’ with him under the Relationships Act (Tas) 2003, however cannot do this if he is still married.
2. Recognition of Foreign Marriages:
The marriage between Arthur and Guinevere took place in Acapulco, Mexico late in 1996. With the marriage solemnized outside Australia its validity must be analsyed under the Marriage Act 1961 (Cth). Under section 88C a valid marriage is one where; “under the local law, the marriage was, at the time when it was solemnized, recognized as valid.” The court applies the choice of law principle of lex fori, meaning the law of the forum, which in this case is Mexico.
When dealing specifically with the issue of a foreign marriage the court will apply the principle of lex loci clebrationis, which means the “law of the place where a marriage ceremony is held.” Therefore as long as the marriage was valid under Mexican law, then it will be held as valid in Australia. As a valid marriage did in fact exist under the Marriage Act then if Arthur is to enter into a ‘significant relationship’ it will depend on the validity of the Mexican divorce.
3. Relationships Act 2003 (Tas):
Arthur wishes to have his relationship with Percival recognized as a ‘significant relationship’ under the Relationships Act 2003 (Tas). Significant relationships are covered by section 4 of the act and defined as: “a relationship between two adult persons [who] a) have a relationship as a couple and b) are not married to one another or related by family.”
In order to enter into a ‘significant relationship’ the parties must, under section 11, make an application to register a deed of relationship. This is where the problem arises for Arthur, as under this section a party cannot be married or in another relationship. Therefore if Arthur’s Mexican divorce is not recognized in Australia then he would in fact still be legally married to Guinevere and unable to enter into a ‘significant relationship’ with Percival.
4. Recognition of Foreign Divorce Decrees:
Guinevere headed to Mexico with Lancelot, seeking a divorce from Arthur. Within three months she was granted a divorce by a Mexican court, on the grounds of the age difference that existed between her and Arthur. The Mexican court assumed jurisdiction in the case due to the fact that it was a Mexican marriage they were dissolving. The divorce was granted in June 2009.
Overseas dissolution decrees are covered by section 104 of the Family Law Act 1975 (Cth).
4.1 A Personal Connection:
Under s 104 the recognition of a foreign decree under the common law, or on statutory grounds, requires the existence of a personal connection with the foreign place where the decree was made. Both statutory grounds and the common law require the connection to exist at the time in which the proceedings were commenced. The difference between these two approaches comes into play with the extent of the connection required, with the common law allowing for a more remote connection to the foreign place.
On statutory grounds it is not sufficient for a decree to be recognized where only the mere presence of a party in the foreign place existed, however the common law rule of reciprocity developed in Travers v Holley provides greater leeway under the common law.
4.2 The Principle of Reciprocity:
The primary case to consider when analyzing recognition of foreign decrees is that of Travers v Holley [1953] P 246, as it established the common law principle of reciprocity. In this case the husband deserted his wife, returning to England and leaving her in New South Wales. He became domiciled in England and due to the principle of domicile of dependence she acquired his domicile of England. The Supreme Court of New South Wales granted a divorce in this case due to the existence of a statutory rule giving it jurisdiction to make such a decree where an applicant wife had been deserted “but had lived in New South Wales for three years before the application was made.” This decision was then recognized in England despite neither partying having Australian domicile due to the fact that English courts were also able to assume jurisdiction based on the same facts as New South Wales. Hodson LJ stated in the case that the court could recognize the foreign decree due to the presence of substance reciprocity, stating to refuse to recognize a foreign jurisdiction would be “contrary to principle and inconsistent with comity.” This is a rule that is confined to actions involving matrimony.
Australian courts have jurisdiction under s 39(4) of the Family Law Act to hear divorce proceedings when either party to the marriage is an Australian citizen at the time the application is filed. Under the rule established by Travers v Holley the position under the common law a foreign decree could be recognized in Australia where the applicant to the proceedings was a citizen of the foreign place, or even simply present in the foreign place at the time the application was filed.
The personal connection must be more established to apply on statutory grounds however, with the elements of domicile and nationality being relevant.
4.3 Recognition of a Connected Place:
A key extension of the principle from Travers v Holley is the recognition of foreign decrees from a connected place. For a decree to be recognized in Australia on statutory grounds, a personal connection must exist between a party to the decree and the foreign forum. The extension comes into play where the decree need only have been “effected in accordance” with the law of the foreign forum, not physically made in the foreign forum. Therefore a decree will be recognized in Australia, provided it is recognized in the foreign forum.
Section 104(8) of the Family Law Act states a foreign decree can be recognized where it “has been effected in accordance with the law of an overseas jurisdiction if it was effected in another overseas jurisdiction in circumstances in which… it would have been recognized as valid by the law of the first-mentioned jurisdiction.” The court stated in Igra v Igra [1951] P. 404 that it is desirable for the court to validate divorces decreed by a competent foreign court in the interests of “comity.”
Applying this principle to the case at hand would entail the divorce being recognized in Australia, if it were recognized in Canada. This is due to the fact that Guinevere was not domiciled, or a citizen of Mexico, where the divorce was granted, however she did retain her Canadian citizenship. However Mexican divorces are not recognized in Ontario and Guinevere under s 104(3) of the Family Law Act would need to have been an ordinary resident of Canada for “not less than 1 year immediately before the relevant date.” Guinevere had being domiciled in Tasmania with Arthur and only spent three months in Canada after leaving him.
Therefore the Mexican divorce between Arthur and Guinevere will not be recognized on Statutory grounds in Australia under s 104(3), so if it is to be recognized this validity must be established under s 104(5) with the common law principles applying.
5. Recognition under the Common Law:
Private international law is important for the fact that it recognizes that there are disputes that can be legally governed by a foreign court. Under the common law when dealing with the dissolution of marriage the choice of law rules that are to apply are the laws of the forum. Section 104(5) of the Family Law Act states; “any divorce… of a marriage… that would be recognized as valid under the common law rules of private international law but to which none of the preceding provisions of this section applies shall be recognized as valid in Australia.” This section allows for a foreign decree to be recognized, even where it would fail under the statutory requirements.
To establish this recognition the existence of a personal connection between the applicant and the foreign place must be established. The common law test is the existence of a “real and substantial connection” to the foreign place. In this case the personal connection that must be established is between Guinevere and Mexico.
Arthur and Guinevere married in Acapulco, Mexico in 1996 whilst on holiday there. Following this they moved to Tasmania and Guinevere became domiciled there, taking Australian citizenship. She lived in Australia until 2008 when she confessed her affair to Arthur and fled back to her hometown of Logres Canada. Neither party visited Mexico again until Guinevere travelled there in order to obtain a divorce so she could marry her new partner Lancelot.
For a personal connection to exist under the common law it is required to exist at the time the proceedings were commenced in the foreign place. Guinevere was present in Mexico to begin the divorce proceedings and while this mere presence is not satisfactory on statutory grounds the precedent laid out in Travers v Holley provides more flexibility. Under this common law principle of reciprocity the courts can recognize a foreign decree where a party was merely present in the foreign place when proceedings were commenced. The principle was approved in Australia in Barriga v Barriga (No 2) (1981) FLC 91-987.
While this is an extremely loose personal connection to the foreign place, it is one in which the courts are willing to accept in certain circumstances.
When analyzing the divorce under the common law, the rule in Armitage v Attorney-General [1906] P. 135 should also be considered, whereby a foreign divorce granted where no domicile exists that is recognized by the law of the parties domicile will be held to be recognized in Australia.
In this case the Mexican divorce was held valid in Halifax, Nova Scotia, and Guinevere having Canadian citizenship can be said to hold domicile in Canada. In Taffa v Taffa [2009] FamCA 85 the respondent was held to be a national of Lebanon even though he had taken up Australian citizenship over a decade earlier. With the divorce held valid here applying, this rule would mean that the divorce could be recognized in Australia.
6. An Offence to Public Policy:
Under the common law Australian courts do have the right to refuse to recognize the decree of a foreign court on the grounds that its recognition would offend public policy, or leave a want of natural justice This principle is also present in the Family Law Act at section 104(5). In Marriage of El Oueik (1977) 29 FLR 171 the court denied the recognition of a foreign decree due to the fact that the applicant went to the foreign place in question solely to obtain a divorce.
The public policy principle provides the court with two main actions, to allow or reject a decree, where it would be “manifestly contrary to public policy. The court may choose to recognize a foreign decree because it’s denial would create a “limping marriage” where there is little substance left in it due to the fact that it has ended in the foreign place. A limping marriage is the result of a conflict of laws and is best described as an imperfection of the legal system. It should be avoided if possible. Alternatively the court may choose to deny the recognition of the decree due to the fact that its recognition would be based on extremely loose links with the foreign place, such as described in El Oueik.
In light of this principle there is cause for concern for the recognition of the divorce currently being analysed as Guinevere travelled to Mexico for the sole purpose of obtaining a divorce from Arthur. The court is likely to look upon this as an offence to public policy due to the fact that the links between Guinevere and Mexico were extremely loose.
In Arthur’s favour however is the fact that Guinevere has now married Lancelot, with whom she was having an affair. They married in Halifax, Nova Scotia, as this is the only province in Canada that recognizes Mexican divorces. Due to the fact that both parties have now moved on with significant others, and Guinevere has remarried, the court would likely view this as a “limping marriage,” and seek to avoid such an imposition. It would appear that there is little to no substance left in the marriage, with the applicant already remarried and the respondent seeking to enter into a ‘significant relationship.’ Under these circumstances the court is unlikely to refuse to recognize the Mexican decree.
Conclusion:
For Arthur to enter into a ‘significant relationship’ with Percival, then under s 4 of the Relationships Act 2003 (Tas) he cannot be married. His divorce from Guinevere would be recognized in Australia under s 104, with an application of common law principles. While there are grounds for the court to oppose the recognition it is unlikely to due to the fact that all parties involved have moved on with their lives to such an extent that no marriage as it is commonly thought of remains.
No comments:
Post a Comment