CONVENTION ON THE RECOGNITION OF DIVORCES AND LEGAL
SEPARATIONS
(Concluded 1 June 1970)
The States
signatory to the present Convention,
Desiring to
facilitate the recognition of divorces and legal separations obtained in their
respective territories,
Have resolved to
conclude a Convention to this effect, and have agreed on the following
provisions -
Article 1
The present
Convention shall apply to the recognition in one Contracting State of divorces
and legal separations obtained in another Contracting State which follow
judicial or other proceedings officially recognised in that State and which are
legally effective there.
The Convention
does not apply to findings of fault or to ancillary orders pronounced on the
making of a decree of divorce or legal separation; in particular, it does not
apply to orders relating to pecuniary obligations or to the custody of
children.
Article 2
Such divorces
and legal separations shall be recognised in all other Contracting States,
subject to the remaining terms of this Convention, if, at the date of the
institution of the proceedings in the State of the divorce or legal separation
(hereinafter called "the State of origin") -
(1)
the respondent had his habitual residence there; or
(2) the petitioner had his habitual residence there and one of the
following further conditions was fulfilled -
a) such habitual residence had
continued for not less than one year immediately prior to the institution of
proceedings;
b) the spouses last habitually
resided there together; or
(3)
both spouses were nationals of that State; or
(4) the petitioner was a national of that State and one of the
following further conditions was fulfilled -
a) the petitioner had his habitual
residence there; or
b) he had habitually resided there
for a continuous period of one year falling, at least in part, within the two
years preceding the institution of the proceedings; or
(5)
the petitioner for divorce was a national of that State and both the following
further conditions were fulfilled -
a) the petitioner was present in that
State at the date of institution of the proceedings and
b) the spouses last habitually
resided together in a State whose law, at the date of institution of the
proceedings, did not provide for divorce.
Article 3
Where the State
of origin uses the concept of domicile as a test of jurisdiction in matters of
divorce or legal separation, the expression "habitual residence" in
Article 2 shall be deemed to include domicile as the term is used in that
State.
Nevertheless,
the preceding paragraph shall not apply to the domicile of dependence of a
wife.
Article 4
Where there has
been a cross-petition, a divorce or legal separation following upon the
petition or cross-petition shall be recognised if either falls within the terms
of Articles 2 or 3.
Article 5
Where a legal
separation complying with the terms of this Convention has been converted into
a divorce in the State of origin, the recognition of the divorce shall not be
refused for the reason that the conditions stated in Articles 2 or 3 were no
longer fulfilled at the time of the institution of the divorce proceedings.
Article 6
Where the
respondent has appeared in the proceedings, the authorities of the State in
which recognition of a divorce or legal separation is sought shall be bound by
the findings of fact on which jurisdiction was assumed.
The recognition
of a divorce or legal separation shall not be refused -
a) because the internal law of the State in
which such recognition is sought would not allow divorce or, as the case may
be, legal separation upon the same facts, or,
b) because a law was applied other
than that applicable under the rules of private international law of that
State.
Without
prejudice to such review as may be necessary for the application of other
provisions of this Convention, the authorities of the State in which
recognition of a divorce or legal separation is sought shall not examine the
merits of the decision.
Article 7
Contracting
States may refuse to recognise a divorce when, at the time it was obtained,
both the parties were nationals of States which did not provide for divorce and
of no other State.
Article 8
If, in the light
of all the circumstances, adequate steps were not taken to give notice of the
proceedings for a divorce or legal separation to the respondent, or if he was
not afforded a sufficient opportunity to present his case, the divorce or legal
separation may be refused recognition.
Article 9
Contracting
States may refuse to recognise a divorce or legal separation if it is
incompatible with a previous decision determining the matrimonial status of the
spouses and that decision either was rendered in the State in which recognition
is sought, or is recognised, or fulfils the conditions required for
recognition, in that State.
Article 10
Contracting
States may refuse to recognise a divorce or legal separation if such
recognition is manifestly incompatible with their public policy ("ordre public").
Article 11
A State which is
obliged to recognise a divorce under this Convention may not preclude either
spouse from remarrying on the ground that the law of another State does not
recognise that divorce.
Article 12
Proceedings for
divorce or legal separation in any Contracting State may be suspended when
proceedings relating to the matrimonial status of either party to the marriage
are pending in another Contracting State.
Article 13
In the
application of this Convention to divorces or legal separations obtained or
sought to be recognised in Contracting States having, in matters of divorce or
legal separation, two or more legal systems applying in different territorial
units -
(1)
any reference to the law of the State of origin shall be construed as referring
to the law of the territory in which the divorce or separation was obtained;
(2) any reference to the law of the State in which recognition is
sought shall be construed as referring to the law of the forum; and
(3) any reference to domicile or residence in the State of origin
shall be construed as referring to domicile or residence in the territory in
which the divorce or separation was obtained.
Article 14
For the purposes
of Articles 2 and 3 where the State of origin has in matters of divorce or
legal separation, two or more legal systems applying in different territorial
units -
(1)
Article 2, sub-paragraph (3), shall apply where both spouses were nationals of
the State of which the territorial unit where the divorce or legal separation
was obtained forms a part, and that regardless of the habitual residence of the
spouses;
(2) Article 2, sub-paragraphs (4) and (5), shall apply where the
petitioner was a national of the State of which the territorial unit where the
divorce or legal separation was obtained forms a part.
Article 15
In relation to a
Contracting State having, in matters of divorce or legal separation, two or
more legal systems applicable to different categories of persons, any reference
to the law of that State shall be construed as referring to the legal system
specified by the law of that State.
Article 16
When, for the
purposes of this Convention, it is necessary to refer to the law of a State,
whether or not it is a Contracting State, other than the State of origin or the
State in which recognition is sought, and having in matters of divorce or legal
separation two or more legal systems of territorial or personal application,
reference shall be made to the system specified by the law of that State.
Article 17
This Convention
shall not prevent the application in a Contracting State of rules of law more
favourable to the recognition of foreign divorces and legal separations.
Article 18
This Convention
shall not affect the operation of other conventions to which one or several
Contracting States are or may in the future become Parties and which contain
provisions relating to the subject-matter of this Convention.
Contracting
States, however, should refrain from concluding other conventions on the same
matters incompatible with the terms of this Convention, unless for special
reasons based on regional or other ties; and, notwithstanding the terms of such
conventions, they undertake to recognise in accordance with this Convention
divorces and legal separations granted in Contracting States which are not
Parties to such other conventions.
Article 19
Contracting
States may, not later than the time of ratification or accession, reserve the
right -
(1)
to refuse to recognise a divorce or legal separation between two spouses who,
at the time of the divorce or legal separation, were nationals of the State in
which recognition is sought, and of no other State, and a law other than that
indicated by the rules of private international law of the State of recognition
was applied, unless the result reached is the same as that which would have
been reached by applying the law indicated by those rules;
(2) to refuse to recognise a divorce when, at the time it was
obtained, both parties habitually resided in States which did not provide for
divorce. A State which utilises the reservation stated in this paragraph may
not refuse recognition by the application of Article 7.
Article 20
Contracting
States whose law does not provide for divorce may, not later than the time of
ratification or accession, reserve the right not to recognise a divorce if, at
the date it was obtained, one of the spouses was a national of a State whose
law did not provide for divorce.
This reservation
shall have effect only so long as the law of the State utilising it does not
provide for divorce.
Article 21
Contracting
States whose law does not provide for legal separation may, not later than the
time of ratification or accession, reserve the right to refuse to recognise a
legal separation when, at the time it was obtained, one of the spouses was a
national of a Contracting State whose law did not provide for legal separation.
Article 22
Contracting
States may, from time to time, declare that certain categories of persons
having their nationality need not be considered their nationals for the
purposes of this Convention.
Article 23
If a Contracting
State has more than one legal system in matters of divorce or legal separation,
it may, at the time of signature, ratification or accession, declare that this
Convention shall extend to all its legal systems or only to one or more of them,
and may modify its declaration by submitting another declaration at anytime
thereafter.
These
declarations shall be notified to the Ministry of Foreign Affairs of the
Netherlands, and shall state expressly the legal systems to which the
Convention applies.
Contracting
States may decline to recognise a divorce or legal separation if, at the date
on which recognition is sought, the Convention is not applicable to the legal
system under which the divorce or legal separation was obtained.
Article 24
This Convention
applies regardless of the date on which the divorce or legal separation was
obtained.
Nevertheless a
Contracting State may, not later than the time of ratification or accession,
reserve the right not to apply this Convention to a divorce or to a legal
separation obtained before the date on which, in relation to that State, the
Convention comes into force.
Article 25
Any State may,
not later than the moment of its ratification or accession, make one or more of
the reservations mentioned in Articles 19, 20, 21 and 24 of the present
Convention. No other reservation shall be permitted.
Each Contracting
State may also, when notifying an extension of the Convention in accordance
with Article 29, make one or more of the said reservations, with its effect
limited to all or some of the territories mentioned in the extension.
Each Contracting
State may at any time withdraw a reservation it has made. Such a withdrawal
shall be notified to the Ministry of Foreign Affairs of the Netherlands.
Such a
reservation shall cease to have effect on the sixtieth day after the
notification referred to in the preceding paragraph.
Article 26
The present
Convention shall be open for signature by the States represented at the
Eleventh Session of the Hague Conference on Private International Law.
It shall be
ratified, and the instruments of ratification shall be deposited with the
Ministry of Foreign Affairs of the Netherlands.
Article 27
The present
Convention shall enter into force on the sixtieth day after the deposit of the
third instrument of ratification referred to in the second paragraph of Article
26.
The Convention
shall enter into force for each signatory State which ratifies subsequently on
the sixtieth day after the deposit of its instrument of ratification.
Article 28
Any State not
represented at the Eleventh Session of the Hague Conference on Private
International Law which is a Member of this Conference or of the United Nations
or of a specialised agency of that Organisation, or a Party to the Statute of
the International Court of Justice may accede to the present Convention after
it has entered into force in accordance with the first paragraph of Article 27.
The instrument
of accession shall be deposited with the Ministry of Foreign Affairs of the
Netherlands.
The Convention
shall enter into force for a State acceding to it on the sixtieth day after the
deposit of its instrument of accession.
The accession
will have effect only as regards the relations between the acceding State and
such Contracting States as will have declared their acceptance of the
accession. Such a declaration shall be deposited at the Ministry of Foreign
Affairs of the Netherlands; this Ministry shall forward, through diplomatic
channels, a certified copy to each of the Contracting States.
The Convention
will enter into force as between the acceding State and the State that has
declared its acceptance of the accession on the sixtieth day after the deposit
of the declaration of acceptance.
Article 29
Any State may,
at the time of signature, ratification or accession, declare that the present
Convention shall extend to all the territories for the international relations
of which it is responsible, or to one or more of them. Such a declaration shall
take effect on the date of entry into force of the Convention for the State
concerned.
At any time
thereafter, such extensions shall be notified to the Ministry of Foreign
Affairs of the Netherlands.
The extension
will have effect only as regards the relations with such Contracting States as
will have declared their acceptance of the extensions. Such a declaration shall
be deposited at the Ministry of Foreign Affairs of the Netherlands; this
Ministry shall forward, through diplomatic channels, a certified copy to each
of the Contracting States.
The extension
will take effect in each case sixty days after the deposit of the declaration
of acceptance.
Article 30
The present
Convention shall remain in force for five years from the date of its entry into
force in accordance with the first paragraph of Article 27, even for States
which have ratified it or acceded to it subsequently.
If there has
been no denunciation, it shall be renewed tacitly every five years.
Any denunciation
shall be notified to the Ministry of Foreign Affairs of the Netherlands, at
least six months before the end of the five year period.
It may be
limited to certain of the territories to which the Convention applies.
The denunciation
shall have effect only as regards the State which has notified it. The
Convention shall remain in force for the other Contracting States.
Article 31
The Ministry of
Foreign Affairs of the Netherlands shall give notice to the States referred to
in Article 26, and to the States which have acceded in accordance with Article
28, of the following -
a) the
signatures and ratifications referred to in Article 26;
b) the date on which the present
Convention enters into force in accordance with the first paragraph of Article
27;
c) the accessions referred to in
Article 28 and the dates on which they take effect;
d) the extensions referred to in
Article 29 and the dates on which they take effect;
e) the denunciations referred to
in Article 30;
f) the reservations and
withdrawals referred to in Articles 19, 20, 21, 24 and 25;
g) the declarations referred to in
Articles 22, 23, 28 and 29.
In witness
whereof the undersigned, being duly authorised thereto, have signed the present
Convention.
Done at The
Hague, on the first day of June, 1970, in the English and French languages,
both texts being equally authentic, in a single copy which shall be deposited
in the archives of the Government of the Netherlands, and of which a certified
copy shall be sent, through the diplomatic channel to each of the States
represented at the Eleventh Session of the Hague Conference on Private
International Law.
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