It’s common in the modern world for relationships to cross international borders, with married couples choosing to live abroad. When these relationships break down, the question of divorce becomes more complex as you have to determine which countries’ courts have the jurisdiction to handle the divorce.
Choosing between jurisdictions can affect the outcome and will also concern the financial settlement, as different legal systems offer varying approaches to asset division and asset division. Therefore, it is important to understand jurisdiction as much as possible.
This blog breaks down international divorce for you to help you have a clear understanding of jurisdiction.
What makes a divorce ‘International’?
A divorce is considered international when the couple have a connection to more than one country. The connections can arise from several factors such as:
- Nationality– Where one or both spouses hold citizenship.
- Residence– Where the couple currently live or last lived together.
- Domicile- a person’s legal home that could differ from their current residence.
- Location of assets- Where property and investments are held.
- Place of marriage- Where the couple got married.
Why is jurisdiction crucial?
Jurisdiction can fundamentally alter the financial landscape of the divorce settlement. Therefore, it is crucial to understand it and make the correct choice. Different counties have different approaches to asset division, spousal maintenance, treatment of specific assets, child matters, procedure and costs. Below is a breakdown of each area and how they are treated differently by countries:
- Asset division- Some jurisdictions state an equal split of martial assets, while England and Wales apply principles of fairness and consider the couple’s needs, contributions, and other factors that might not result in an equal split.
- Spousal Maintenance- Laws vary regarding the amount and duration of spousal support, while some jurisdictions are more generous than others.
- Treatment of Specific assets- Assets like pensions, trusts, business interests, or inherited wealth will differ based on what country the divorce takes place in.
- Child matters- Any matters concerning children are typically determined by the courts in the country where the child habitually resides. This can lead to multiple jurisdictions in the proceedings.
- Procedure and costs- The speed and cost of the divorce proceeding will vary depending on the country chosen.
How to Determine Jurisdiction in England and Wales
In England and Wales, the court’s authority for a jurisdiction is based on domicile and habitual residence. You will be able to divorce here if one or more of the below apply:
- When both spouses have a habitual residence in England and Wales. If England and Wales were the last place of habitual residency for both individuals and one spouses continues to live there, it can also apply.
- If the responding party maintains habitual residence in England and Wales.
- When the filing spouse has lived in England and Wales for at least 12 months prior to submitting the application.
- When England and Wales serve as the domicile for both parties.
- If either spouse maintains domicile in England and Wales.
The race to court
As the choice of jurisdiction has such a significant effect on the financial consequences, spouses could try to initiate proceedings in the country where the laws favour them. This is known as forum shopping.
This will lead to a ‘race to court’ where each party tries to file first to secure their preferred jurisdiction. However, in a post-Brexit UK landscape, the strict first to issue rule does not apply to England. Regardless, as EU member states still go for these rules, speed is still crucial.
It is therefore advised to promptly act and seek legal advice from a divorce solicitor if considering an international divorce.
Things to consider.
International divorces have several complexities beyond the jurisdiction. One such thing is parallel proceedings, which means that it is possible for divorce proceedings to run simultaneously in different countries and require applications to pause one set of divorce proceedings.
A Recognition of Orders also means that a divorce could be granted in one country but may not be automatically recognised in another. This will sometimes require a separate legal process.
Finally, an International prenuptial Agreement is increasingly recognised in England and Wales. However, international pre-nuptial agreements might not be upheld if they attempt to dictate jurisdiction improperly or conflict with the laws of the divorcing country.
How Davisons Law can help
Dealing with international divorce requires specialist knowledge and expertise. At Davisons Law, our expert family law solicitors are skilled to help guide you and navigate you through any issues with your international divorce. Get in touch today by calling 0808 3036 987 and a member of our team will reach out to you.
