Divorce Jurisdiction Choices – the Necessary Planning
Many families live internationally, with the consequence that when the marriage breaks down there are choices about where divorce and related financial proceedings are started. Those choices may change the financial provision made for the claimant spouse dramatically. Often choices need to be made quickly as ‘first in time’ rules which apply in some countries mean that the race to court can change everything.
In other cases, early planning may be key. This may be because the ability to start divorce proceedings in a particular country needs steps to be taken first, or otherwise because the likelihood of retaining proceedings in the chosen country in the event of a dispute requires changes that may take time to put in place.
Even if divorce proceedings are concluded in another country this does not necessarily prevent the English & Welsh courts from considering a spouses financial claims provided the claimant spouse meets the criteria for making a claim for financial relief after an overseas divorce. Such applications can only be secured with court permission and so securing a divorce here may still be important.
How is the ability to start divorce in each country determined?
This is where things start to get complicated. Each country has its own rules about the entitlement of people to start divorce proceedings in that country. Most have a requirement of residence for a certain period, but nationality and domicile are also important for many. There are unified rules within the EU, but the UK is no longer party to those rules since Brexit.
Will my Divorce be Recognised Internationally?
Your ability to start proceedings in your chosen country is not the only issue. The next question is whether the divorce will be recognised internationally and particularly in a country where enforcement proceedings may be necessary. This is also not straight forward.
Whilst most divorces properly conducted will be recognised internationally, there are notable exceptions. For example, England & Wales allows divorce to be started on the basis of sole domicile. Domicile is not the same as residence, it is about the country to which you have the closet connection. So, a person who is most connected to England & Wales possibly because they were born here, may have lived in another country with their spouse (who may be a national of that other country) for many years but because their intention is to return to England at some point, possibly for their last years, they may be able to start divorce proceedings here. However, sole domicile divorces are not recognised in many countries. Indeed, there is an international treaty to which the UK is party that deals with international recognition that excludes some (but not all) sole domicile divorce applications from recognition.
Will England & Wales be the Best Jurisdiction for my Divorce?
The short answer is “it depends”. Certainly, London is often referred to as the divorce capital of the world, in large part because of the significant awards that are sometimes made here. Spouses are entitled to share, usually equally in the capital acquired during the marriage but even where capital is entirely pre-acquired, a claimant spouse will be entitled to have their ‘needs’ met. Needs is a relative concept that reflects the standard of living during the marriage and may include a home of equivalent standard to the marital home, a car and even a holiday home as well as capitalised support.
What if my Spouse starts Divorce in another Country first?
This does not prevent the English & Welsh courts from starting a divorce process here provided there is jurisdiction to do so. This will depend on habitual residence and domicile. Provided there is jurisdiction the English court will decide on the most appropriate court on the balance of convenience. This will take into account a whole host of factors including residence, location of the assets, where income is being earned, where any children are at school, the languages spoken by the couple and the practicality of attending court in London. This is where careful divorce planning can make a significant difference.
Conclusion
For many couples the question of where to divorce usually requires advice in different jurisdictions. What is outlined here only touches on the surface of the complex questions that need to be considered.
Where you will do best financially is not the only issue to consider. If you have children and there is any chance of a dispute about them requiring court intervention, the best jurisdiction for questions to be decided about them may be entirely different from where you will do best financially.
Of course, avoiding a fight is almost always best and decisions made at an early stage can affect this.
In every case, early specialist international family law advice is essential. This is where FLiP can help. David Allison and Elizabeth Hicks are fellows of the International Academy of Family Lawyers (IAFL) and they along with other members of the team regularly advise on these issues.
FAQs
Can I get a divorce in England & Wales if I live abroad?
Yes. If you have a strong connection through domicile or your spouse is resident in England, you can start divorce proceedings here. Early planning is key to ensure the courts accept your case.
Will my divorce in England & Wales be recognised internationally?
Most divorces are recognised abroad, but exceptions exist. Sole domicile divorces may not be accepted in some countries, which can affect enforcement of financial orders.
How do I choose the best country for an international divorce?
Factors include where assets and children are, residency of both spouses, and potential financial outcomes. Early advice from an international family law expert is essential.
What if my spouse starts divorce proceedings in another country first?
English & Welsh courts can still hear the case if they have jurisdiction. They will consider assets, children, income, and practical matters to decide the most appropriate venue.
David specialises in financial claims on divorce, especially cases with an international element. He has extensive experience in cases where jurisdiction is an issue and those which involve claims for financial relief after an overseas divorce. He is also well known for his work for cohabitants, same sex couples, and civil partners.