Foreign Divorce Proceedings – How Do They Affect Me?
With the increasing number of international families, it is now quite common for the courts of different countries to have jurisdiction for a divorce. This may mean that there are options for the person starting the process. As financial outcomes may differ significantly between countries, it is quite common for the person starting the process to take advice in every country where divorce is possible and then to start proceedings in the country in which they will do best, usually to the detriment of the other spouse.
To complicate matters each country has its own rules for jurisdiction. Many base jurisdiction on habitual residence with differing amounts of time (if any) that may be required to have been habitually resident before proceedings can be started. However, many also have jurisdiction based on the nationality of one or both spouses or their domicile. Hence there are choices.
Conversely, jurisdiction for issues concerning children is almost entirely based on habitual residence. This may mean divorce proceedings taking place in one country but that country being unable to resolve issues concerning the children.
The EU has uniform jurisdiction for divorce but of course the UK is no longer bound by those jurisdictional rules. The EU also has clear rules about competing proceedings – once a divorce is validly commenced in an EU country, no other EU country can entertain the divorce. There is no such ‘first in time’ rule here in England & Wales. This can result in competing proceedings in different countries and a race to conclude the divorce first. Whilst some countries, including England will stay (put on hold) proceedings if another country is better placed to deal with the divorce there are many countries that will not.
What should I do if I am served with foreign divorce proceedings?
The first thing to do is to take advice from a lawyer with international expertise. They will be able to advise you about the likely outcome in their own country and they will also be able to secure advice from a specialist in the other country so that you know the likely outcomes in each and the steps that can be taken to improve your position. If it is possible to stay the foreign proceedings the lawyers will need to work together to devise the strategy that is most likely to result in the best outcome for you.
What if the foreign divorce is concluded?
It is not always possible to stay foreign proceedings and if a foreign divorce is concluded first, the English court cannot entertain divorce proceedings. In very limited circumstances the English court can issue a declaration of non-recognition but that is rare and largely only available if neither party is a national of the relevant country nor habitually resident or domiciled there.
Can I issue a claim for financial relief after an overseas divorce?
The English court will allow financial claims following an overseas divorce provided either party to the marriage is habitually resident here for at least 12 months or domiciled here. There is also a limited jurisdiction if neither the residence nor the domicile rules apply but the couple has a matrimonial home in England. In this case claims are limited to that home.
This does not mean that everyone habitually resident or domiciled in England can claim financial relief here. It is a discretionary form of relief and the court should not grant permission unless there is a substantial (solid) ground for making the application. In deciding this the court will consider the parties’ connections to England. Provided there is a substantial connection, permission is likely to be granted.
Assuming permission is granted by the court, the procedure for the claim follows the procedure for financial claims in divorce. Whilst arguably the jurisdiction is to meet needs where adequate provision has not been made by the foreign court, the awards made under this provision are very similar/practically indistinguishable to awards made in divorce.
Of course, this is not a panacea and where the couple’s assets are largely located overseas there may be enforcement issues. It is therefore always best to get early advice and, if possible, get the divorce concluded in the country more favourable for you.
David Allison is a director at Family Law in Partnership. David acts for a wide range of individuals including business owners, entrepreneurs, bankers, other lawyers and their spouses. The focus of his practice is financial claims on divorce, particularly those with an international dimension. David is also well known for his expertise in the legal issues affecting cohabitants, same sex couples and civil partners. David is a Fellow of the International Academy of Family Lawyers and chair of the IAFL LGBT committee. Contact David at E: firstname.lastname@example.org or T: 020 7420 5000.