Why 'where' matters - jurisdiction considerations for international divorces
Dec 19, 2019, 12:56 PM
divorce, international divorce
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Dec 18, 2019, 12:54 PM
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The question of whether to seek a divorce is one over which many people agonise. However, for divorcing couples with international connections, the associated questions of when and in which country to get divorced are also extremely important considerations, and ones which can have serious repercussions for the outcome.
Many divorcing couples have connections to other countries, whether that be through them both living overseas, temporarily or permanently, or through holding foreign citizenship. It is also increasingly common for spouses to spend time living in different countries to each other, for work or due to other commitments. As a result, it may be that they are able to seek a divorce in more than one country and they therefore need to make the important choice as to where to proceed.
The rules governing jurisdiction (the legal question of whether the court has the power to deal with a matter) vary greatly from country to country and so legal advice must be taken to establish this. It may be, for example, that because one spouse is living overseas and the other in England, or one spouse is an overseas citizen or national, that they are technically entitled to seek a divorce in either country.
The important question therefore becomes where to get divorced. There are practical considerations to be taken into account in this respect, such as how long the couple would need to wait before they can divorce – in Ireland, for example, the Divorce Act requires that the couple must have lived apart for at least four of the five years before proceedings are issued, and similar requirements apply in other jurisdictions around the world. By contrast, beyond the requirement that the couple must have been married for at least a year before seeking a divorce, there is no time requirement under English law (unless they wish to rely on a non-fault based ground for divorce), and so a spouse entitled to divorce in either England or, for example, Ireland may choose the English process in order to resolve matters more quickly.
Equally, the timescale for the divorce process itself may be an important consideration for those couples who wish to move on with their lives sooner rather than later, and particularly if they are seeking to remarry. In some jurisdictions, the divorce process can take several years. Indeed, in 2014, the English High Court voided 180 divorces obtained by Italian couples with no link to England, who had fraudulently used an English PO Box address on their divorce petitions. This situation came about because of their desperation to circumvent the Italian divorce process, which at that time was taking several years on average to complete. The English divorce process (excluding dealing with financial and children matters), usually takes a matter of months from start to finish, and is therefore significantly faster.
There are also important financial considerations in deciding in which country to divorce. The English courts apply a principle of non-discrimination when it comes to parties’ contributions to a marriage; that is to say that, when the parties have adopted traditional roles within their marriage, a homemaker’s non-financial contribution is treated as equal to the breadwinner’s financial contribution, unless the particular facts of their situation mean that this is not appropriate. Various other jurisdictions around the world focus on parties’ financial contributions, and the financially weaker party can be seriously disadvantaged as a result. England is, for this reason, widely described as the jurisdiction of choice for the financially weaker party, as it is seen to make more generous provision for them than most other countries. The English courts also have more rigorous financial disclosure requirements than many other jurisdictions, and take attempts to hide money or assets extremely seriously. In some cases, English judges have even been known to send non-disclosers to prison. As such, hard-fought battles between spouses often take place as to whether a divorce should proceed in the English courts or overseas, as the difference in outcome can run to many millions of pounds, particularly if the second possible jurisdiction takes a very restrictive approach to financial awards.
Where each spouse has started divorce proceedings in a different country and the couple cannot agree where it should proceed, the courts apply complex rules to decide the matter. One important consideration is which country’s process was started first, so it is important to act quickly for anyone suspecting their spouse may issue in another country and a jurisdiction dispute is possible. Having the earliest dated petition can be of huge significance.
Our team of family and divorce lawyers has built strong relationships with a network of overseas lawyers in jurisdictions worldwide with whom we can consult on such cases in order to establish the legal position in the relevant country. We can then act quickly to identify what is in our client’s best interests and ensure that those interests are protected.
For couples with links to another European country, it is extremely important to take into account that Brexit will completely change their legal position. At present, a different set of rules applies in England when it comes to determining disputes over jurisdiction in divorces involving a European country than to those involving a country outside of Europe. These rules will change post-Brexit and, for some individuals, taking action before then could be the difference between winning or losing a jurisdiction dispute. Given that the post-Brexit process is expected to be more complex and time consuming, the cost savings which may be achieved by beginning the process now may also be significant. For those affected, it is therefore particularly important to take advice on the consequences of Brexit for their divorce as soon as possible.
In summary, our top practical tips for anyone with international connections who is seeking to divorce are:
Take urgent legal advice - even if you or your spouse have only a tenuous connection to another country, that may be enough for divorce proceedings to be issued there, so it is important to find out where you stand as early as possible as being the first to decide when to file for divorce and in which country can have significant repercussions for the outcome.
Keep quiet - do not inform your spouse that you are intending to issue divorce proceedings. If tipped off, they may start the divorce process overseas before you have been able to issue in England and Wales for instance, which may be the best jurisdiction for your circumstances. If your spouse has commenced divorce proceedings, do not respond within those proceedings until you have taken legal advice, as important legal steps will need to be taken to protect your position and show that you are challenging jurisdiction.
Secure your original marriage certificate - this will need to be filed with the court with your divorce petition. If you are unable to find it, let your lawyer know as soon as possible.
Assume nothing - many people make the mistake of assuming that their spouse would never bother involving another jurisdiction, or would not know the financial benefits to them of doing so. Being complacent can risk your spouse issuing divorce proceedings in another country first and seriously affect your position and the outcome.