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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.
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 ofStack v Dowden 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.