Does Divorce Jurisdiction Matter?23 Mar 2023 | Yael Selig
Table of Contents
I am a family law practitioner with a large client following in England and in Gibraltar. I often have to deal with issues concerning international jurisdictions which requires making a decision early on as to the Country which is the more advantageous for my client to initiate Divorce proceedings.
What is divorce jurisdiction, and why is it important?
Separating couples who have multiple nationalities and / or domiciles or residential qualifications in different countries may have a choice as to where they Divorce. This is known as the “forum” or “jurisdiction” of the divorce. Since each country has its own divorce laws, the choice of forum can tremendously affect how long the divorce takes, what assets each party walks away with at the end as well as decisions regarding arrangements for children. These situations require quick and effective advice to secure the most appropriate jurisdiction. Not to do so can have seriously detrimental repercussions as to the outcome.
The rules governing jurisdiction (i.e. whether the court in a particular Country has the power to deal with a matter and whether Divorce proceedings can thereby be issued) vary from Country to Country and so legal advice must be taken promptly in each jurisdiction to establish this. Throughout my more than 30 years of practice, I have developed strong relationships with a network of overseas lawyers with whom my clients can consult in order to establish the legal position in the relevant jurisdiction. We act immediately to identify what is in our client’s best interests and ensure that those interests are protected.
Is England/Wales the Right Jurisdiction for Your Divorce?
Because it is so important, we first consider jurisdiction 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.
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.
In the same way the financially stronger party will seek to try and avoid a Divorce Application being issued in England. It is therefore vital to act expeditiously from the outset. The parties need to be fully aware and appraised from the beginning and should not make the mistake of assuming that their spouse would never involve another jurisdiction. Complacency can be costly.
Throughout my more than 30 years of practice, I have developed strong relationships with a network of overseas lawyers with whom my clients can consult in order to establish the legal position in the relevant jurisdiction. We act immediately to identify what is in our client’s best interests and ensure that those interests are protected.
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?
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:
- Both spouses are habitual residents of England and Wales.
- Both of you were habitual residents as a couple here, and one of you still lives here.
- You want to start a divorce, and your spouse is habitually resident in England and Wales.
- You want to start a divorce and have lived in England and Wales for at least 12 months.
- You want to start a divorce, have lived here for 6 months, and are also domiciled here.
- 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 intend to return. 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, changing your domicile by permanently moving to another country and severing all ties with your domicile of origin is possible. This is called domicile of choice.
“Habitual residence” is less complicated; it’s simply where you live when your divorce proceedings start. For couples with a global footprint, the court will look at your “centre of interests” 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 different, 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.
Disputes over jurisdiction
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.
Disputes as to jurisdiction can be costly and lengthy. This is especially so when each party has started divorce proceedings in a different Country each having their own vested interest in pursuing the relevant jurisdiction. The parties will need to weigh up the merits of their case as against the legal fees they could be facing. Nonetheless the cost of securing the jurisdiction of choice can achieve a substantial saving in respect of the ultimate financial award.
Although it is the case that since Brexit the country in which proceedings first are issued is not conclusive of where the Divorce will happen it still remains a very important factor in deciding between any competing jurisdictions.
If the actual Divorce has proceeded in an overseas jurisdiction it is possible in some circumstances to apply to the English Court for a further financial award if the provision made by the foreign Court is considered to be unacceptably inadequate. That is however more difficult as between England and decisions of the courts of the EU.
The best advice is to speak to a solicitor as soon as possible. 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 is not only 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. Enforcing an English divorce settlement through a foreign court can be costly and time-consuming – a solicitor can provide the necessary guidance.
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