Spotlight
Family Court Practice, The
Order the 2021 edition due out in May
Court of Protection Practice 2021
'Court of Protection Practice goes from strength to strength, having...
Jackson's Matrimonial Finance Tenth Edition
Jackson's Matrimonial Finance is an authoritative specialist text...
Spotlight
Latest articles
JM v RM [2021] EWHC 315 (Fam)
(Family Division, Mostyn J, 22 February 2021)Abduction – Wrongful retention – Hague Convention application – Mother decided not to return to Australia with children – COVID 19...
Re A (A Child) (Hague Convention 1980: Set Aside) [2021] EWCA Civ 194
(Court of Appeal (Civil Division), Moylan, Asplin LJJ, Hayden J, 23 February 2021)Abduction – Hague Convention 1980 – Return order made – Mother successfully applied to set aside due...
Disabled women more than twice as likely to experience domestic abuse
The latest data from the Office of National Statistics shows that, in the year ending March 2020, around 1 in 7 (14.3%) disabled people aged 16 to 59 years experienced any form of domestic abuse in...
The President of the Family Division endorses Public Law Working Group report
The Courts and Tribunals Judiciary has published a message from the President of the Family Division, Sir Andrew McFarlane, in which the President endorses the publication of the President’s...
HMCTS updates online divorce services guidance
HM Courts and Tribunals Service have recently updated the online divorce services guidance with the addition of guides for deemed and dispensed service applications, alternative service...
View all articles
Authors

'So you’ve divorced me in Italy! … but I am keeping the house in London'

Sep 29, 2018, 20:01 PM
divorce, property, family law, jurisdiction, assets
This article looks at an anomaly that is faced by spouses married to an Italian citizen, who is divorced in Italy, but at the same time has property in England.
Slug : so-you-ve-divorced-me-in-italy-but-i-am-keeping-the-house-in-london
Meta Title : 'So you’ve divorced me in Italy! … but I am keeping the house in London'
Meta Keywords :
Canonical URL : http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/so-you-ve-divorced-me-in-italy-but-i-am-keeping-the-house-in-london
Trending Article : No
Prioritise In Trending Articles : No
Date : Jun 27, 2017, 07:53 AM
Article ID : 114237
Carmine Procaccini
Anthony Gold Solicitors

The law on the jurisdiction of divorce proceedings is well established within the EU. Put simply, subject of course to the usual criteria of residence and domicile, whoever commences divorce proceedings first in an EU member state normally has the conduct of the proceedings.


The International Family Law Practice (by David Hodson) provides comprehensive coverage of the international elements of English family law. Subscribers can log in here.

Find out more or request a free 1-week trial to the online service. Please quote: 100482. 




So, if divorce proceedings are commenced in Italy before England, the Italian Court will deal with the divorce.

This article looks at an anomaly that is faced by spouses married to an Italian citizen, who is divorced in Italy, but at the same time has property in England.

The anomaly is this, notwithstanding that the Italian courts have the conduct of the divorce process, they are reluctant to make orders transferring capital situated in England. Although the Italian courts might make orders regarding the income that is generated by a UK property, they rarely order that the property is sold.

This is a very different approach to the English courts, who will order the sale of a European property.

So what does this mean in practical terms? If parties divorce in Italy and there is property in England, the parties will have to commence a separate action in England for an order for sale, unless of course, the parties agree to the sale by consent. This will involve a second set of proceedings and in most circumstances additional cost.

When dealing with applications for orders for sale, the English courts will treat the proceedings as a ‘standalone’ case and not a matrimonial dispute, referring back to the Italian divorce proceedings.

If the property is jointly owned, the presumption is that on sale the net proceeds will be divided on an equal basis, although this presumption can be overturned in some cases. If the property is in the name of one spouse, then the court approaches the dispute by reference to the House of Lords case of Stack v Dowden [2007] 2 AC 432 and subsequent case-law.

The lack of certainty as to the outcome of such cases can lead to disputes and expense.

Until such time as the Italian divorce courts are prepared to make orders concerning the disposition of property in England, this problem will not go away.

You have been warned!
Categories :
  • Articles
Tags :
money_house
Authors
Provider :
Product Bucket :
Related Articles
Load more comments
Comment by from