Divorcing in the most favourable jurisdiction

Many couples move abroad for periods of time, often to fulfill work commitments and if they decide to separate and subsequently divorce, there is often confusion over which country the Divorce Petition should be issued in.

Divorce proceedings abroad are more complicated than in the UK and you may be required to adhere to local laws. Factors taken into consideration include:

• whether or not you are both living overseas in the same location and need to file for divorce in that country

• whether or not that divorce will be recognised in your home country

• whether or not the divorce proceedings are being initiated by the spouse when the other party is overseas – most common in military life when one party is often away from home for extended periods

• if one party is overseas on a longer-term assignment and frequent travel back and forth is not possible, causing the couple to drift further apart

Brussels II

Under an EC regulation (known as Brussels II) the rules for jurisdiction in all EU member countries (except Denmark) about divorce have been harmonised. This means that in a situation where more than one EU member country could deal with the divorce (for example, where a German couple live in England) the country where the proceedings are filed first has exclusive jurisdiction. In other words, whoever is “first past the post” in filing the divorce proceedings will secure the jurisdiction of that country as it will take precedence over any other European country. As a result it is extremely important to take specialist family law advice in different countries (if there is more than one potential jurisdiction applicable to the situation) and for very prompt action to be taken in order that the husband or wife can secure the “best” jurisdiction for him or her.

In extreme cases it may even be worthwhile making a “pre-emptive” strike in an overseas location rather than waiting for proceedings to be lodged in the English courts.

English jurisdiction for ex pats

It is relatively easy to establish English jurisdiction for ex pats. The rules are complex but the general principle is that jurisdiction can be granted if certain conditions as to domicile or habitual residence are met. For example, a non-domiciled Petitioner may still be able to claim English jurisdiction simply based on habitual residence, which can be based on periods of residence as short as one year.

If you are considering divorce it is advisable that you choose your jurisdiction at the earliest opportunity as under European legislation this operates on a first come, first served basis.

Assets held abroad

If you are getting divorced and your spouse’s wealth is all held abroad, in principle you can still apply to a UK court to obtain your share. However, divorce proceedings abroad are more complicated than in the UK with regard to what assets are held abroad and where, the range of powers that the court here could make and the difficulties, if any, that you could face around enforcing this in the foreign country. You may also be required to adhere to local laws.

Even if you were divorced abroad it may be possible for your ex-spouse to apply to a UK court for financial orders arising out of your marriage against you. However, there are limitations to the orders that our courts can make and therefore you should seek advice as to whether it would be better for you to start financial proceedings in the country where the divorce took place instead.

International family law is a complex area and the position varies greatly from country to country. Contact one of our specialist Divorce Solicitors at the earliest opportunity to ensure you receive the most expert legal advice.