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17 FEB 2012

David Hodson on International Family Law: Dominican Republic and other superfast divorces

International Family Law Practice by David Hodson

David Hodson

Newspapers at the weekend carried stories of a new service of superfast 24 hour divorces being offered to people in England. The catch: the need to spend a night in the Dominican Republic and there are far worse places in the world to spend 24 hours! The benefit: immediate divorce, although the small print is slightly different. If the Family Law Act 1996 had been implemented, we might now have 24 months for a divorce in England. With public service cuts, the divorce process in any event is getting longer here. So there is a clear attraction and appeal for quicker divorces. Perhaps a new branch office in the Caribbean? I investigated further which meant my paralegal went surfing.

The Dominican Republic has a special law for foreigners or non-resident citizens. It is para V of Law 142 which amends Law 1306 bis on Divorce from 1971. There is a hearing in court although only one party need attend and provided the other is properly legally represented with appropriate consents. The parties expressly agree to attribute jurisdiction to the judge. In such circumstances, normal residency requirements are waived, specifically there is no residence requirement. The parties must have agreed in a formal document not only divorce but arrangements for children, division of common property and alimony and child support. Although there are several grounds for divorce, this requires mutual consent of course. Behind the headline of the divorce by an overnight stay, in fact the divorce petition itself is presented several days before the actual hearing and the final divorce documentation can take up to 4 weeks: so about the time it takes to issue a divorce petition in some English county courts these days!

What we could not find in our admittedly brief research and which is fundamental is the question of domicile. The media reports said this process grants temporary or some other form of domicile although we could not find this in our brief investigation. This is crucial. Naturally anyone from England wants to know the Dominican Republic divorce will be recognised in England. This is s46.1 Family Law Act 1986. For a divorce from foreign proceedings to be recognised here it has to be effective under the law of the country in which it was obtained, which would presumably be the case in the Dominican Republic, and at the relevant date either party was habitually resident, domiciled or national in that country. Habitual residence is specifically out of the question because there is no residency. Nationality would not be present and therefore recognition in England relies on domicile in the Dominican Republic. The English concept of domicile is very historic and changing domicile is a substantial act with a heavy burden of proof. Not something from an overnight visit. However there is a little-known subsection, s46.5, which says domicile can be treated as either that of the country where the divorce occurred or that of the UK where recognition arises. So in order for a Dominican Republic divorce to be recognised it would be fundamental to show that the overnight visit was domicile in accordance with the law of the Dominican Republic. Careful research is needed for anyone seeking a superfast divorce from the Caribbean then to be recognised in England.

These superfast divorces have been around for many years. Mr Justice Coleridge looked at it in Kellam [2000] 1 FLR 785, in the context of mail-order divorces in Guam. The English position is different to that of the US in the Supreme Court decision of Auerbach (15.5.74)

It will be fundamental that the other party had complete notice and was unreservedly in agreement. Otherwise it will quickly fall foul of s51.3 FLA. There is opportunity for dishonest applicants purporting an agreement from the respondent. There will not be time for the applicant to even unpack his suitcase so no time whatsoever for the respondent to obtain a Hemain temporary anti-suit injunction. Therefore it can be presumed that the English court will have absolutely no difficulty with a Part III application if there is evidence that the respondent was not fully in agreement after specialist legal advice - or a refusal of recognition.

The superfast divorce has its appeal of course. There is clearly a market in England, which will only increase as English divorces get slower. But caution is needed and good legal advice should be taken from England in advance of this course of action. If there is any hint or ambivalence of a lack of comprehensive agreement on all issues, after disclosure and legal representation, then it has real risks - with the prospect of greater and even longer litigation thereafter.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element.  

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new forthcoming major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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