Blog: Talaq divorces and remedies in Scots law



Jamies Foulis

Jamies Foulis looks at a judgment on summary divorce from India’s Supreme Court and how Scots law would handle something similar.

This week has seen a decision issued by the Supreme Court of India which declared the ‘Triple Talaq’ divorce unconstitutional and un-Islamic. The case was brought by five Muslim women who had been divorced in this way, together with two rights groups, and the decision, reached by a majority of three judges to two, has been hailed as a significant victory for women’s rights.

The practice allowed a Muslim man to divorce his wife by saying the word ‘Talaq’ to her three times, with the practice evolving in recent times to the extent that it has been communicated by letter, SMS, WhatsApp message or over Skype. The practice is banned in the majority of Muslim countries, and the Indian government has supported the ending of the practice (albeit they have not legislated on the issue).

In addition to the lack of opportunity which the practice provides for reflection and possible reconciliation after a separation, it has also caused concern as a result of the way in which this abrupt end to the relationship has immediately left women without a home and any form of financial support.

Were someone living in Scotland to encounter their spouse trying to divorce by these or similar means, there can be a remedy in certain limited circumstances.

If the divorce has been obtained overseas without the other spouse being afforded the opportunity to participate in the divorce proceedings and seek orders for financial provision or support, and the law does not provide another remedy, then an argument can be made that the foreign order for divorce should not be recognised here on the basis that it would be contrary to public policy to do otherwise. That would clear the way for an application for financial provision on divorce to be made in this country, provided the court was satisfied that it had jurisdiction to do so.

If an order for divorce is obtained overseas and falls to be recognised in Scotland then the courts in Scotland can still consider an application for financial provision on divorce if the person applying for the financial order resides in Scotland, and either a) their spouse does too at the time when the application is made to the court; or b) their spouse lived in Scotland when the couple last lived together as husband and wife; or c) their spouse has an interest in a property in Scotland at the time when the application is made; and the following conditions are satisfied:

  1. the foreign divorce proceedings were raised by the other party to the marriage;
  2. the application to the Scottish court is made within 5 years of the foreign order for divorce being made;
  3. a court in Scotland could have dealt with an action for divorce if it had been brought when the application for the foreign order was made;
  4. the marriage had a substantial connection to Scotland; and
  5. both parties are still alive when the application is made.

As it may seem, the cases where these conditions will be met are very limited. If they are, the application is considered under the normal laws which apply to financial provision on divorce in Scotland, but the court must also specifically consider any foreign order made in relation to financial provision and the resources of both parties at the time when the application is dealt with and for the foreseeable future thereafter.