Divorce

There are a number of possible criteria.­ The English courts will deal with a divorce where there is a sufficient connection with England.­ Most grounds require a period of simple residency and/or the status of habitual residency by one or both spouses in England or joint domicile.­ In certain circumstances, the English family courts can deal with a divorce if both are non-resident but one spouce is domiciled in England.­ 

No.­ English family courts can deal with any issues concerning marriages which took place abroad provided there is sufficient connection with England.­ This sufficient connection is known as 'jurisdiction'.­

No.­ The English family courts can deal with any issues concerning the marriage if there is still sufficient connection, known as 'jurisdiction', but the courts of other countries may also be able to deal with the divorce and related financial matters.­ Moreover it may be more advantageous for you for the proceedings to be in that other country.­ Urgent specialist legal advice should be taken in these circumstances before any decision is made.­

No.­ Many international families find at a time of relationship breakdown that two or more countries can deal with issues regarding their family.­ The financial outcomes accompanying the divorce can be dramatically different.­ It is very important to find out which is the best country for you.­ An outcome in one country may be highly favourable to an applicant, usually the weaker financial party, but highly detrimental to the paying party, the stronger financial party.­ There is much unfairness and injustice to international families by the wide disparity of final financial orders made in different countries.­ Specialist legal advice should be taken at a very early stage in the breakdown of the relationship about where any divorce or other family proceedings should take place, and it is sensible to seek this advice before discussing divorce with your spouse for civil partner. ­

Disputes about which country should deal with a divorce and related family issues are known as 'forum disputes'.­ Taking advice about the best, most advantageous country for a divorce or other family proceedings is known as 'forum shopping'.­ These forum disputes can take very many months from commencement of the application to the end of the final hearing and are often very expensive, public and very divisive for future parenting arrangements and resolving other issues.

Take care before embarking on a forum dispute.­ But the differences in outcomes between countries can be substantial even for families of modest wealth.

First, it is necessary to ascertain in which countries proceedings could be issued.­ This includes states or territories in some countries which have a federal basis.­ This is what is known as the 'countries with jurisdiction'. ­

Secondly, it is necessary to ascertain the outcomes in those countries with jurisdiction.­ This includes the final financial settlement, interim financial arrangements, the available injunctions to preserve the assets, the timetable and grounds for obtaining a divorce, any arrangements for children, the legal costs, the personal inconvenience of the proceedings being in that country, language barriers, the recognition of any orders in other countries in which one spouse may be likely to live or work, opportunities for enforcement of any orders and a number of similar factors.

The outcome, timetable and procedure in the various countries with which an international family may have connections can be very different indeed.­ Some countries may seem to favour men or local applicants and others seem to support women applicants and/or mothers.­ Some countries can be very slow from the start of the separation or the start of proceedings until the conclusion and outcome.­ Some countries are perceived as very generous to the weaker financial party, whereas some grant only short term alimony (spousal maintenance) or none at all.­ Some countries have exceptional powers to obtain full disclosure including finding out about assets offshore or held in the name of third parties and trusts, whereas other countries have very limited disclosure powers and permit easy evasions of full disclosure.­

Proceedings in some countries can be very expensive in costs although this must be balanced against better outcomes.­ Whilst many countries now encourage people to act in person in family court proceedings without a lawyer, these international aspects are an area in which specialist legal advice should always be urgently taken before you embark on any action. The early stages of a case where two or more countries might have jurisdiction can be vital.

­Within the countries of the United Kingdom, there are mandatory rules to determine which country’s courts should deal with the divorce or other family proceedings.­ It is often based on the place of the couple’s last residence.

Most countries decide on the basis of which country has the closest connection with the family.­ They take into account many factors.­ It is not usually decided on the basis of who issues first, although this can be a factor.­ In most international families, it is often clear with which country the family has the closest connection.­ The English court has a discretion in accepting or declining jurisdiction on the basis that England or the other country has the closer connection.­

Prior to 31 December 2020, if two European Union countries had jurisdiction e.g., UK and France, it depended only on where the proceedings were lodged first in time.­ That country’s courts would then usually deal with all matters concerning the family including divorce, and ancillary financial matters.­

Since 31 December 2020 (when the UK left the EU) the standard discretionary 'closeness of connection' will apply to EU and non-EU countries outside the UK. (For forum disputes within the UK jurisdiction is often determined on where the parties last lived together). 

Some countries operate a system informally known as community of property.­ In its basic form, the assets accruing during the marriage up until the date of separation are divided equally.­ Premarital and post separation assets and all inheritances and gifts are taken out of account.­ This inflexibility can sometimes produce, to English perceptions, quite unfair outcomes.­ It gives no account to commitments made within a marriage often to one spouse’s prejudice e.g. giving up a career for child raising or moving countries to be with the other spouse.­ It gives no account of the needs of the parent, often not the primary earner, who has responsibility for day-to-day care of the children as an ongoing prejudice to their own career and earning.

Some countries have an additional discretionary lump sum on top to produce a more just outcome.­ Often however this adjustment is quite a small amount.

Spousal Maintenance may be in addition to this division.­ However an increasing number of countries do not grant spousal maintenance for more than a few years after the divorce.­ This can be irrespective of the length of the marriage, the disparity in the financial circumstances of the spouses, and the inability of one spouse post separation to recover earning capacity and after the commitments to the marriage.­ This can seem very unfair.

Some countries apply not their own domestic law but the law of the country with which the couple have the closest connection, known as 'choice of law' or 'applicable law'.­ England only ever applies English law.­ Most English lawyers consider applying the law of other countries makes settlements harder to achieve and more costly, even more uncertain and slower.­ Moreover continental European countries using applicable law do not do so consistently or comprehensively; applying their own domestic law to procedural matters and anecdotally applying their own domestic law if they find it difficult to ascertain or understand the foreign law.­

Some countries have binding pre-marriage agreements as a cultural and legal norm.­ Sometimes these are entered into without separate independent legal advice, without disclosure and without any opportunity of reviewing what is fair.­ Nevertheless these countries very rarely deviate from these sorts of agreements at a time of subsequent divorce, irrespective of the changes that may have subsequently occurred and however unfair the agreement may now appear with changing circumstances.­

Ascertaining the assets to be divided in some countries, even if to be divided equally, can be hard work, very frustrating and often simply impossible.­ Some countries rely on self disclosure without any opportunity of corroboration or investigation.­ Some countries have minimal investigation powers.­ Some countries ignore assets put within trusts or companies, even if done so to evade marital responsibilities.­ Some countries ignore offshore assets i.e. resources outside the country.­ In short, ascertaining disclosure reliably in some countries is impossible, leading to much frustration and injustice.

Many international spouses have to balance the predictability, certainty, low legal costs and possibly inadequate disclosure of some countries, with the more flexible fairness-discretion, more tailor-made, yet uncertain outcomes, the greater likelihood of full disclosure, higher legal costs and possibly greater financial settlements in countries such as England.

In countries with any significant Islamic influence, the division of marital assets is often based on mahr, dowry or similar arrangements reached at the time of the marriage and with reference to the Qur’an.­ Whilst to some observers the arrangements can seem very unfair especially to the woman, Muslims including some female Muslims argue its fairness.­ Nevertheless it is a feature that has to be taken into account in comparing financial outcomes between countries with which international families have a connection and choosing where a divorce will take place.

Generally England is perceived as a very generous country with applicant wives obtaining substantial orders.­ London is described as 'the divorce capital of the world', in part because of its very multinational population but in part due to the very substantial settlements redistributing assets and making orders against assets held behind trusts, companies and otherwise hidden.­ With many international families having some connections with England, it has been a forum for many big money divorces in recent years.­ There are much lower divorce settlements abroad.

It can affect issues such as ability to remarry, children’s status and legitimacy, nationality, immigration, tax, succession, divorce claims.­ If the divorce is not recognised in England, a person will be treated as still married and can seek a divorce here and ancillary financial claims.

A divorce granted by a civil court in another part of the United Kingdom will be automatically recognised throughout the UK.­ Any other form of divorce e.g., via a Sharia Council, is not recognised.

The law changed on 6 April 2022. 

Since then the only grounds for divorce is the 'irretrievable breakdown of the marriage'. A divorce can also now be applied for in one spouse’s name or jointly.  

If the divorce is unopposed an Applicant can apply for a 'Conditional Order' (formerly known as Decree Nisi) 20 weeks after the application for divorce is made. The 'Final Order' (formerly known as Decree Absolute) can then be applied for by an Applicant from six weeks after the 'Conditional Order' is made.

A divorce granted in accordance with the law of another member state of the European Union will almost always be automatically recognised.­ A certificate of divorce in the EU, properly translated and certified, is good across the whole of the EU.

This is binding on the English courts following a new EU law in June 2011.­ Even if England is dealing with the divorce, it has to transfer any issues of maintenance, interpreted as meaning 'needs', to the country agreed by the couple, even if that agreement was without legal advice or disclosure and circumstances may have changed significantly.

Spousal maintenance is maintenance that is paid by one spouse or civil partner to their former spouse or civil partner following a divorce or civil partnership dissolution. It is different to child maintenance.

Spousal maintenance is usually paid on a monthly basis and continues either for a defined period (term of years) or for the remainder of the parties’ life known as a 'joint lives order'.

Spousal maintenance ends if the recipient remarries or enters a civil partnership or if either party dies. It may be varied or dismissed by the courts on a change in circumstances.