Civil Recognition of Jewish Divorce - International Recognition of The get

International Recognition of The get

If the get is executed in a state where it is effective to terminate the marriage, this potentially affects the status and capacity of the spouses so that they are then free to remarry. Within the conflict system, the enforcement of foreign judgments is a reasonably well-regulated area. But this form of divorce is only quasi-judicial at best, so it falls outside the normal rules.

The general expectation as to choice of law depends on the characterisation of the issue. As a form of divorce, the rule might be that the lex loci actus (the law of the place where the transaction took place) should be applied and recognised universally so that the parties would avoid a limping marriage (i.e. that whether they are considered married will change depending on which states they visit or reside in). However, this may be against public policy because one of the parties is seeking to evade some mandatory provisions of law or it is not in the best interests of any children (see parens patriae). If the characterisation is status/capacity, this will be determined under the lex domicilii (the law of the domicile) in a common law state, and under the lex patriae (the law of the nationality) or habitual residence in a civil law state. Alternatively, the court seized of the matter might apply the lex fori (the municipal law of the forum state).

The best answer is always to produce an in rem solution, i.e. wherever possible, the result must be accepted in the majority of states around the world. Thus, if the get is effective under the lex loci actus and recognised under the laws relevant to determine status and capacity, it will be recognised so long as the best interests of the children are protected in any orders or agreements made by the parties. For example, in English law, Part II of the Family Law Act 1986 draws the distinction between a divorce obtained by "judicial or other proceedings" and the divorce obtained "otherwise than by means of proceedings". The get is therefore recognised in UK if:

it is effective by the lex loci actus (the law of the place where it was obtained), and

at the relevant date, either party was:

- habitually resident in,

- domiciled either in accordance with the local law or English law, or

- a national of that foreign country.