Statelessness is the legal and social status of a person having no state to recognize his nationality. The term is often associated with refugees and asylum requests. A STATELESS divorce, on the other hand, is a term I had just made up to refer to a divorce petition which could not be filed anywhere. It is the status of a married couple having no state to recognize their petition for divorce. Normally, a petition for divorce is filed before the very civil registry office which registered the marriage. But what happens if foreign elements become involved?
Take the case of Robert and Kim. Robert and Kim were married in The Netherlands. Robert is a Dutch citizen while Kim is Canadian. When their marriage fell apart, Robert moved to Thailand while Kim moved to Singapore. Several years after, they decided to file a divorce.
Upon inquiry, it was found that The Netherlands require that both parties must be Dutch citizens or, if not, one of them must have resided in The Netherlands for the last six months before a petition may be filed. Neither of them could go back to The Netherlands and stay there for six long months as their jobs are located elsewhere. Canada requires minimum residency of one year. Singapore requires a minimum of three years of residency. Finally, Thai courts would not take cognizance of the petition since the marriage was not registered here.
Robert and Kim were trapped in a circle of conflicting laws. Clearly, they deserve to get that divorce in Thailand but their circumstances would not allow them to. Justice and fairness dictates that the law must have reserved some sort of protection. What then is their remedy? Apply the rules on Conflict of Laws.
Conflict of Laws is that part of law which comes into play when the issue before the court affects some fact, event or transaction that is so clearly connected with a foreign system of law as to necessitate recourse to that system (Cheshire, Private International Law, 1947 ed., p.6). Simply put, these are set of laws which require the court to apply the laws of another jurisdiction, or to refer the case to that jurisdiction.
In the case at bar, Kim tried to file the divorce in Singapore but was refused for the obvious reason that she is neither a citizen of Singapore nor was their marriage registered there. She resolved to obtain a statement from the Singaporean lawyer to the effect that the Singapore courts would not recognize the petition and consequently requesting The Netherlands court to accept such. Robert did the same thing with a Thai lawyer and a Canadian lawyer. This was a logical thing to do to. What Robert did was to seek refuge from his own country, which luckily is the same country which registered their marriage. The Netherlands court would most likely admit the case to its docket for fairness’ sake.
Applying the conflict rules can be intricate, but never exacting. Different jurisdictions succumbed to a universal principle of truth and justice and had in fact made this a part of their legal system. Bottom line is, there is always a legal remedy for every legal problem.