Law Report: Israeli divorce not recognised / Berkovits v Grinberg and another, Attorney General intervening - Family Division (Mr Justice Wall), 11 January 1995.

The dissolution of a marriage by a get which was instituted in England and obtained in Israel was a transnational divorce which was not recognised under English law. Mr Justice Wall decided that an Israeli get could not be recognised in English law.

Simon and Annie Grinberg had married in Israel in 1975. The issue was whether the dissolution of their marriage in 1988 by a get, written and instituted in London, where Mr Grinberg was resident and handed to Mrs Grinberg at a district Rabbinical court in Israel, where she was resident - a divorce which was effective under the law of Israel - was entitled to recognition in England under sections 45 and 46 of the Family Law Act 1986.

A get is a consensual transaction formally handwritten in Hebrew and Aramaic and executed in a Beth Din, a court of Jewish law, in the presence of three Dayanim, Jewish judges, who ensure the detailed and complex requirements of Jewish divorce law had been met.

It was argued that the effect of the 1986 Act was to overrule R v Secretary of State for the Home Department, Ex parte Fatima [1986] AC 527 in which the House of Lords held a divorce which was initiated by the pronouncement of talaq in England and obtained in Pakistan was not an "overseas divorce" within the Recognition of Divorces and Legal Separations Act 1971 since a single set of proceedings had to be instituted in the same country in which the divorce was obtained.

Rabbi Bernard Berkovits in person; Ian Karsten QC and Lord Meston (Treasury Solicitor)

for the Attorney General, intervening.

MR JUSTICE WALL said that a divorce obtained by means of a get was "obtained by means of proceedings" within section 46 (1). It was the handing of the get, or bill of divorce, to the wife which actually dissolved a marriage under Rabbinical law, althoughthe writing of the get itself was a matter of considerable importance and formality, and constituted a step in the proceedings. The question was whether the "transnational divorce" by the get obtained in Israel was "an overseas divorce" within section 45. The matter was one of statutory construction.

Incorporating the statutory definition of "an overseas divorce" and "relevant date", section 46 provided that the validity of a divorce obtained in a country outside the British Isles obtained by means of proceedings should be recognised if the divorce was effective under the law of the country in which it was obtained and at the date of the commencement of the proceedings either party was habitually resident in the country in which the divorce was obtained.

Section 46 referred to one set of proceedings which must be instituted in the country in which the divorce was obtained. The concept of "proceedings" was territorial and related to the jurisdiction of a particular judicial authority within a specific geographical location.

On the plain language of the sections, the enactment of section 45 and 46 did not have the effect of altering the law in relation to transnational divorces and overturning the decision in Fatima. Section 44 plainly envisaged proceedings commencing and concluding in the same country. Transnational divorces were obtained partly in the British Isles and might not be regarded as valid. The question as to whether or not in an increasingly multi-racial and multi-ethnic society the refusal to recognise the transnational divorce could or should continue was a matter for Parliament.