Divorce Jurisdiction

23 Mar 2023 | Sarah Norman-Scott
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Is England/Wales the Right Jurisdiction for Your Divorce?

When it comes to getting divorced, London has a lot of attraction for individuals coming from overseas, where it is often referred to as the “divorce capital of the world” because judges here have more discretion than in other countries and settlements tend to be more favourable to the financially weaker party. But what are the conditions that make it possible for a couple to get divorced in England, and why might you opt for an English divorce when you have a choice of jurisdiction?

What is jurisdiction and why is it important?

Individuals with links to more than one country often have the option of choosing which one to pursue divorce proceedings in. This is known as the “forum” or “jurisdiction” of the divorce. Since each country has its own divorce laws, the choice of forum can have a tremendous effect on how long the divorce takes and what assets each party walks away with at the end.

Because it is so important, jurisdiction is the first thing we consider when a new client comes to us. This is to ensure that:

  • They have the right to get divorced in England and Wales, and
  • England and Wales is the right place for them to get divorced when there are multiple jurisdictions at play.

Who can get divorced in England/Wales?

Regardless of your nationality and where you got married, you can apply for a divorce in England and Wales if at least one of the conditions is satisfied:

  1. Both spouses are habitual residents of England and Wales.
  2. Both of you were habitual residents as a couple here, and one of you still lives here.
  3. You want to start a divorce and your spouse is habitually resident in England and Wales.
  4. You want to start a divorce and you have lived in England and Wales for at least 12 months.
  5. You want to start a divorce and you have lived here for 6 months, and are also domiciled here.
  6. Both spouses are domiciled in England and Wales.

“Domicile” is a technical legal term. Broadly, your domicile is the place you consider home and to which you have the intention of returning. Everyone has a domicile of origin – the country in which your father was domiciled when you were born. For example, if you were born in Saudi Arabia but your father was domiciled in England, then your domicile of origin would be England. However, it’s possible to change your domicile by permanently moving to another country and severing all ties with your domicile of origin. This is called domicile of choice.

“Habitual residence” is less complicated; it’s simply where you are living at the time that your divorce proceedings start. For couples with a global footprint, the court will look at where your “centre of interests” are when deciding where you live most regularly, such as where you have community ties and where your children go to school.

Why might you choose to get divorced in England/Wales?

A number of factors have helped London gain its “divorce capital” title. These include:

  • A well-defined legal system that attempts to resolve issues in a non-confrontational way.
  • No-fault divorce rules, which means it is not necessary to establish the grounds for divorce.
  • Decisions regarding the division of finances are based on fairness and equity, and the court favours the financially weaker party by taking a 50/50 split of assets as its starting point – homemakers and breadwinners are treated equally.
  • There is no assumption that spousal maintenance will not be paid or will only be paid for a short duration.
  • Pre-nuptial agreements are more likely to be recognised by English/Welsh courts than in some other jurisdictions.
  • Pre-acquired assets are not automatically ringfenced in the England/Wales
  • It is often quicker to get divorced in England/Wales than in other countries, although this will depend on the complexity of the case.

All assets are on the table in an English divorce, not just the assets you acquired during the marriage. Parties are required to make full and frank disclosure of all of their worldwide assets, and the courts have wide discretion to re-distribute those assets to achieve a fair outcome. For example, they might order the transfer of property anywhere in the world, the sharing of a pension, or the payment of monthly maintenance payments potentially up until the death of either party.

Other countries may take a very different – and potentially less generous – view when dividing assets, pensions and investments and making spousal maintenance awards. The jurisdiction that is secured can mean a dramatically different divorce settlement.

Choose well and choose quickly

Once you file for divorce, the choice of jurisdiction becomes set in stone. It’s critical to get the right advice as soon as possible; otherwise, you might lose the race to select the most advantageous jurisdiction. Since Brexit, the application first issued no longer takes priority however timing is still important and can make up part of which jurisdiction is most appropriate.

The best advice is to speak to a solicitor as soon as you can. They can determine if you are eligible for a divorce based in England and Wales and whether it’s the right forum for you. The decision not only is based on the potential value of the settlement but also on other factors such as how difficult it will be to locate, transfer or sell assets that are located overseas. It can be costly and time-consuming to enforce an English divorce settlement through a foreign court – a solicitor can provide the necessary guidance.

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