Which jurisdiction should an international English couple get divorced in?
When English couples live abroad, there is likely to be concern and questions with regards to where they should get divorced. Before Brexit, there was a ‘first past the post’ rule, which meant that whichever party validly claimed the divorce jurisdiction in their preferred country first would win the ‘race’. Valid jurisdiction is based on a number of factors, varying from country to country, and some countries have practical considerations such as timing that need to be adhered to. Ireland, for example, dictates the number of years that parties must have lived apart before proceedings can be issued. However, a couple cannot simply divorce in the forum of their choice. In England, the court will require jurisdiction to give it the power to deal with the divorce and financial settlement. The requirements for jurisdiction are:
- both parties to the marriage are habitually resident in England and Wales;
- both parties to the marriage were last habitually resident in England and Wales and one of them continues to reside there;
- the respondent is habitually resident in England and Wales;
- the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made;
- the applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made;
- both parties to the marriage are domiciled in England and Wales; or
- either of the parties to the marriage is domiciled in England and Wales.
Post-Brexit, this ‘race’ concept no longer applies. If there is any dispute as to whether England or Wales or another EU country should deal with the divorce, then whichever country has the ‘closest connection’ to the couple should deal with it. The factors that the English courts will consider when deciding the ‘closest connection’ is:
- where assets are held
- the alternative court being put forward
- where children are attending school
- cultural background
If parties are able to divorce in either England and Wales or a non-EU country, then thought should still be given to which is the correct forum to deal with the divorce, rather than which country first issued the divorce application.
Parties may elect to apply for divorce and financial remedy proceedings in a jurisdiction where the timings are more beneficial to them. For example, in Switzerland, there are often long gaps between hearings, which slows the divorce process. In Italian courts, you must have been legally separated for six months having filed a joint application for separation, and there must be no children under the age of 18. Alternatively, there must be a separation of 12 months if the separation was contested or if there are children under the age of 18. In England and Wales, you can apply for divorce immediately upon the irretrievable breakdown of marriage.
In Italy, divorce, financial, and child-related matters are considered within one set of proceedings, whereas in England and Wales, these matters are each dealt with under separate court applications. If matters progress without delay, the English process will typically be faster than Italy’s. In some courts, it is not possible to finalise a divorce without dealing with maintenance and/or asset division, a barrier that is not present in England.
Another consideration for international parties is which jurisdiction will likely provide them with the most favourable outcome. English courts recognise the contribution of a homemaker as just as valuable as that of a sole breadwinner or financial contributor, which would understandably be a preferred approach for a financially weaker party. This is why London is often referred to as ‘the divorce capital of the world’ as the financially weaker party is likely to receive a larger share of the assets than they might in another jurisdiction. English courts also have wide powers to investigate the financial resources of the parties, examining indirectly held assets and even taking into account wider resources, such as financial support from the parents of the parties.
These are just a few of the considerations that parties must factor in when commencing divorce and financial remedy proceedings and determining which jurisdiction / (s) they can apply within and which would be the best for their circumstances.