Background

Several submissions to the Commission raised concerns about uncertainty in the recognition of foreign divorces. The current test, confirmed by the Supreme Court in H v H, is based on whether one spouse was domiciled in the foreign jurisdiction, rather than habitually resident.

Project

The project proposes examining:

• Current Test for Recognition of Foreign Divorces: In H v H, the Supreme Court held that domicile, not habitual residence, determines recognition. Domicile requires assessing a person’s intention to remain in a jurisdiction, which can be complex, whereas habitual residence is based on factual circumstances and may be simpler.
• Potential Reform: The Supreme Court indicated that legislation could change the test to habitual residence. The project will consider whether such reform is appropriate.
• Related Issues: The project may also review recognition of foreign polygamous and proxy marriages, as suggested by the Supreme Court in HAH v SAA & Ors, which noted these areas would benefit from further examination.

Next steps

The Commission will scope the project thoroughly to identify the key issues and carry out consultation about proposals for reform

Documents

Updates will be added at a later date.

Updates

Updates will be added at a later date.