Deciding where to divorce
There are many people and families who have close connections to more than one country, either because they were born or married outside of England and Wales or lived or worked abroad before or during their marriage. When your relationship breaks down you may therefore be able to bring a divorce in more than one country.
It is important to identify this at an early stage because financial and other outcomes vary hugely from one country to another. Specialist family law advice can help you identify those countries which may be able to deal with your divorce and then choose the ‘best’ jurisdiction for you. This process is known as ‘forum shopping’.
When speed is essential
Where there are potentially other countries involved, time is often of the essence and it may be necessary to act very quickly. Within Europe, the general rule is that the country in which the divorce proceedings are first issued seizes jurisdiction, regardless of where there is the closest connection. Who issues first is also a relevant, although this carries less weight in other parts of the world.
It is important that you do not advise your husband, wife or civil partner that you are considering divorce or else they may also seek to issue proceedings in the country most advantageous to them.
International reach
We work closely with many specialist family lawyers around the world on behalf of our clients to ensure that they are able to obtain specialist advice from other family lawyers – and act with speed when necessary.
If I got married outside of England and Wales, does it mean my divorce has to be in the same country?
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'.
I got married in England but we now have connections with other countries, does it mean my divorce has to be here?
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.
Just because one of us is living in England or we were married in England, does this mean that the divorce should be here?
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.
How do I decide where to issue family court proceedings?
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.
How do courts decide which country should deal with our family dispute?
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.
What sort of factors are considered for closeness of connection?
Nationality, residence, domicile, any agreements about which law or which country should deal with matters concerning the family, location of the wedding, the country with which each had the closest connection before the wedding and during the marriage, where the primary financial assets are situated including pensions, where the children are at school, remedies available in the foreign court, the cultural background of the parties, prospects of enforcement of any orders, existence of marital agreements, the availability of legal aid and other similar factors.
What is the difference within Europe? How is it decided which country will deal with a divorce?
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).
Can proceedings started in one country be transferred to another?
Yes, the English court can and does sometimes transfer the entire proceedings or part of proceedings to another country if the courts of the other country are better placed to deal with issues e.g., interpretation of local law or practice.
Prior to 31 December 2020, in certain circumstances, it was compulsory for courts to transfer maintenance claims (defined as 'needs') where another country has prior jurisdiction for maintenance or the couple have years previously agreed that the other country should deal with maintenance. Issuing first for divorce in these circumstances does not ensure all the financial issues are resolved in that country.
Now, prior agreements do not prevent the English courts being able to make orders for maintenance but might still be a factor in the English Court’s approach to determining the quantum and term of maintenance.
How differently are financial issues dealt with abroad?
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.
Why do I need to be cautious about admitting residency or domicile?
Each has tax implications under English tax law including liabilities for income tax, capital gains tax and/or inheritance tax. They can have tax and nationality implications under the laws of other countries. Great care is needed. Often tax advice as well as family law advice should be taken before admitting either residency or domicile.
Why is recognition of my foreign divorce important?
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.
I have been divorced elsewhere in the United Kingdom. Will England recognise it?
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.
I have been divorced outside the European Union. Will England recognise it?
Divorces obtained in another EU member state before 1 January 2021 are automatically entitled to recognition in England. Divorce obtained after this date may also be recognised under the 1970 Hague Divorce Recognition Convention which applies to approximately 50% of EU member states.
If recognition is not possible under these means it can be more complicated. Recognition then depends on whether the divorce was the subject of 'proceedings' or 'other than by means of proceedings'.
This can be more complicated. Recognition depends on whether the divorce was the subject of 'proceedings' or 'other than by means of proceedings'.
If a foreign divorce granted by means of 'proceedings' was valid in the country in which it was obtained and at that time either spouse was resident or domiciled or a national of that country, and both spouses had notice of the proceedings, the foreign divorce will almost always be recognised in England. Apart from courts, 'proceedings' also includes non-court proceedings but this requires a degree of state official or similar involvement. It may not include Sharia councils and similar. Some 'religious' divorces abroad are not considered to be 'proceedings'.
Recognition is more uncertain when the divorce is granted abroad other than by means of proceedings. The requirements are more vigorous especially notice to the respondent spouse. Neither spouse can be habitually resident in the United Kingdom for a year preceding the divorce and each must be domiciled either where the divorce occurred or in a country which recognises the form of divorce. This category includes certain religious divorces such as Jewish gets and Islamic Talaqs. Legal advice should always be taken, often in conjunction with advice from a lawyer in the country where the divorce occurred. Certain countries with religious divorces have a degree of formality and opportunity for both spouses to take part in the religious divorce. England tends to recognise such divorces. Bare talaqs without any official involvement are rarely recognised.
However it is fundamental that the divorce should have started and finished in the foreign country. England will not recognise a foreign divorce in which, for instance, any part of the foreign divorce takes place in England. They are known as 'transnational divorces'. This includes reported cases such as a Jewish get which was 'written' in London and sent to Jerusalem or where the Talaq was pronounced in Bolton and sent to the wife in Pakistan. Neither were allowed as valid foreign divorces.
A foreign divorce might not be recognised by reasons of English public policy. There are a number of reported cases in which there has been refusal to recognise but in fact it is rare in most conventional cases. The courts are anxious to avoid the concept of 'limping marriages' where a divorce is recognised in many countries in the world but not recognised in others, so the spouses are left partially divorced and partially still married!
I am worried that I may be compelled into a forced marriage. What can I do?
The English court now has considerable powers to protect the victim or potential victim of a forced marriage, whether in England or abroad. This includes powers of arrest. Anyone can apply for these injunctions; not just the victim if for example the victim is unable to do so. Special procedures apply to help the victim give evidence in court. The court has the power to set aside and grant a decree of nullity of a forced marriage on the basis of duress. The UK government has set up a Forced Marriage Unit with an excellent website, a helpline, guidance and links.
I am the parent with primary care of our child and moved abroad to get away froma bad situation. I now find I am accused of abduction and risk and criminal proceedings. It seems so unfair.
A lot has changed since the Hague Convention was first introduced. It was then rightly intended to stop the non-resident parent, perhaps frustrated at the lack of contact, from snatching the child. It worked well and appropriately. However over the years the abducting parent has become increasingly the primary 'residential' parent, perhaps feeling isolated in another country which is perhaps the country of the other parent, perhaps unsupported financially, without family nearby, perhaps badly treated with domestic violence, and being unable in reality to apply to relocate. Such primary residential parents then take a child permanently abroad, often being unaware of the seriousness of doing so or indeed without even knowing of the need for permission. Having done so, they then find that the full panoply of international law, courts, police, criminal sanctions are against them with an immediate return to the country from which they fled, often feeling, and actually being, in a worse situation than they were before they left.
The appropriate response is not to abduct but to obtain permission or a court order to relocate. However there are very different criteria for relocation across the world. This situation needs realistic appraisal. It can often work unfairly. Some countries are very strict and may not allow relocation.
Equally there are still, sadly, too many child abductions away from the primary residential parent, especially to non-Hague convention countries. Sometimes the child goes missing altogether or for many years. Sometimes the courts of the country to which the child has been abducted will not assist in any return and perhaps even transfer custody to the other parent, the national, often the father. Some parents have had to take drastic and dramatic steps to recover their children, even after many years apart. Genuine child abduction is still a major problem. Many countries are not doing enough or anything to secure the return of abducted children.
What is the Hague Convention?
It is a worldwide agreement entered into by over 100 countries with the intention to secure the fast return of abducted children to the country from which they have been abducted. Governments, police and courts work together very closely, including between countries. Often free legal representation is available to the parent whose child has been abducted, irrespective of their means and financial circumstances. The courts of the country to which the child has been abducted should not normally deal with welfare issues, save for interim arrangements and other protections. Their concern is the early return of the child. There are only narrow defences to a Hague Convention application.
If my child has been abducted to England from a Hague convention country, can I approach any English lawyer to act for me?
Yes, but that lawyer will need permission from the English Central Authority (which is administered by ICACU) to do so free of charge. Normally ICACU only instruct lawyers on a specialist panel who will be able to represent you free of charge. International children work, and especially child abduction work, is a specialisation and requires special expertise.
If you are defending the case as an alleged abductor, you can appoint a lawyer of your choice but you will not receive automatic legal aid. You can apply for legal aid in the normal way, based on means and merits tests.
What happens if our child has been abducted to a country which is not a signatory to the Hague convention?
There are unfortunately still many countries which are not signatories to the Hague Convention. Some non-signatory countries actively cooperate as if they are signatories. Some have entered into bilateral arrangements with England similar to the Hague Convention such as Pakistan and Egypt. However a number of countries do not co-operate fully to secure the return of an abducted child. Very good, experienced and specialist legal advice and representation is needed and must be sought quickly. English specialist lawyers often work closely with lawyers in the country to which the child has been taken. Proceedings in England such as wardship can sometimes assist to encourage the courts of the other country to order a return from abroad. Other steps can be taken e.g., seizing assets belonging to the abducting parent.
I want to oppose an order for return of my child, even if I may have abducted the child. What should I do?
First, be realistic and admit the abduction, even if you personally consider you have done nothing wrong. Take legal advice before you make any admissions.
Secondly be realistic with your lawyer in considering prospects of defending proceedings. Unlike child relocation applications where defending can result in improved contact on the relocation being allowed, defending child abduction proceedings rarely has any impact on what may happen after the child’s return. Indeed, defending can make a court more anxious to secure a quick return. Consider the defences carefully. Many reported cases depend on particular facts. Does your case possibly come within any of the defences/exceptions?
If a defence is unlikely to succeed, be realistic and put resources and energies into securing the best position on return.Seek assurances about personal safety, no criminal prosecution, provision of accommodation and perhaps financial support (so-called 'safe harbour orders'), commitment to remaining the primary residential parent and commitment on any issues concerning the child to be litigated promptly in the courts of the other country. If any of this may be ineffectual or suspect, this may be a good reason to be able to oppose a return.
Consider the benefits of mediation in looking at wider issues surrounding the abduction and future care of the child.
Is it easier to oppose and defend a return to a non-Hague country?
Generally yes. The English court does not have an obligation to return the child, and will therefore consider the welfare of the child more broadly. English courts will be more prepared to consider long-term issues, i.e., who is the best parent to look after the child and care for the child and in which country. It is often beneficial for your lawyer to work with a specialist lawyer in the other country to ascertain what would happen if the child were to be returned.
What if I took our abducted child to another country but were then to come back to this country and leave our child abroad. How could I be ade to bring our child back to this country?
You, your friends and relatives in England would probably be ordered to attend Court to disclose the child’s whereabouts. Your solicitors in England may be forced to disclose your whereabouts or even information you had given to them. The English court may make a Court Order, communicated immediately to the courts and governments of the other country, for the child to be immediately returned to this country. A Court can also commit a parent or other relative to prison until a child has been returned. The Court has very wide powers to impose penalties on anyone who withholds information that may lead to the disclosure of a child’s whereabouts. This may include financial bonds. The English courts co-operate extensively with the courts of other countries in cases of missing and abducted children.
Surely, no one would be able to find out where I was with my child?
The Court can make very powerful orders when a child is missing. It is of paramount importance that the child is located quickly. This includes:
- Orders against telephone companies to locate the address a telephone is used by an alleged abductor or the area from which mobile calls are made
- Orders for properties or other assets to be seized and perhaps even to be sold and for the money to be placed in an account to enable the other parent to utilise the money as a fighting fund for Court proceedings in this country or abroad for the location and safe return of the child
- Orders against banks to freeze accounts
- Orders against airline companies and ferry companies to disclose travel records
- Orders against friends and relatives to attend court to disclose whereabouts of parent and child
- Orders against internet companies to disclose the confidential IP address that would detail in which country an abductor is living and/or e-mail traffic
- Orders against lawyers to disclose whereabouts and to produce files for inspection by the court; this is a rare example of the courts having the power to overcome lawyer client confidentiality
- Orders to search a home and seize personal possessions that may give clues as to where the alleged abductor is living
- Orders against travel agencies to disclose all travel records that they have on file
- Orders against hotels to disclose details
- Orders against health authorities and medical practitioners to disclose any treatment given
- Orders against local authorities and welfare benefit offices
The above orders are only an example. This list is not exhaustive. Courts view the abduction of children and failure to disclose whereabouts very seriously indeed and use all available powers.
Interpol can also be asked to intervene. This could eventually lead to extradition proceedings resulting in you and your child being forced to leave the country where you are living. This could result in your child being separated from you either in the country where you are living or on your return. Criminal proceedings are then likely.
Now our relationship has broken down, I want to leave England and relocate permanently to another country. If our child is living with me, can I just leave?
No. You must obtain the permission of the other parent and anyone else with custody rights before you take the child abroad permanently. If not, you will probably find yourself embroiled in child abduction proceedings.
If the other parent is not willing to give his or her permission, you must obtain permission from the Court. This will not be granted if the only reason for your wish to move to another country is, in reality, to prevent the child’s other parent from having regular contact with your child. Equally you may well be given permission to relocate by the court if the only real reason for the other parent’s refusal was to create difficulties for you as the primary residential parent.
Most often it is a finely balanced decision about relocation. These are some of the toughest, hardest and most emotional issues facing international families.
We have an agreement which specifies that if there were any family proceedings then they should be in a particular country. Will Englnd also consider this as not legally binding?
It is conventional with international families to include what is known as a 'jurisdiction clause' in a marital agreement which specifies the preference for the country where any proceedings should take place. England places great weight on these clauses in marital agreements. It is quite likely that in any forum dispute, England will give considerable weight to a jurisdiction clause in deciding which is the more appropriate country to deal with a case. However such an agreement is irrelevant within the EU as to where the divorce takes place: all that matters is who issues first.
Do I have to attend a compulsory mediation information meeting before I commence English family court proceedings if I or the other spouse or parent is abroad?
Not always. For example this requirement does not apply where one person is abroad, or in some cases with any international element.
Our marital agreement was entered into ina country which has applicable law, and we have a clause in which we specify that we would want the laws of a particular country to be applied. As England only ever applies its own laws, how would this clause be treated?
This applicable law clause would be treated by the English courts as if it was a jurisdiction clause and as an expression of a preference that any proceedings were dealt with in the country of the chosen applicable law.
How can I stop paying spousal maintenance?
Maintenance ends automatically if the recipient remarries or enters a civil partnership or if either the payer or recipient dies.
The paying party can apply to court for the maintenance to be reduced or brought to an end if there has been an adverse change in their financial circumstances or an improvement in their financial circumstances of the recipient.
When considering whether maintenance can be terminated the court will consider whether the recipient of the maintenance can adjust without undue hardship to the end of maintenance.
What happens if I lose my job and can't pay the spousal maintenance?
The payer of the maintenance should advise their former spouse of their change of circumstances and should then seek to reach an agreement.
In some circumstances it may be necessary to apply to the court for a suspension of the maintenance order whilst the payer remains out of work.
In the event that alternative employment is found with lower or higher remuneration it may be that either party may then apply to the court for a variation of the existing order.
I am intending to enter into a marital agreement abroad. What do the English courts prefer to see to give it substantive weight on any later divorce settlement?
The English Courts still prefer to see:
- A pre-marriage agreement was entered into in good time before the marriage, to overcome suggestions of duress and undue pressure
- Independent legal advice has been sought by both parties to the contract before the document is signed, or at least was available
- There has been full financial disclosure of financial and other relevant circumstances of each spouse
- It is, in broad terms, fair and reasonable
- There was no duress or misrepresentation
It is always a matter of judicial discretion, and each case is determined on its own facts. The existence of marital agreement is one factor to be considered in deciding which country is the best one for the divorce proceedings.¬ If the agreement will be upheld as binding in another country and this agreement is favourable to you, then that country may be better for a divorce than England despite this recent change in the law.
My former spouse, the recipient of the maintenance, is now working - do I still have to pay them maintenance?
It will depend on the circumstances in which the original order was made and on how this change of circumstance affects the financial position of the recipient. It may be that the party receiving maintenance is now earning sufficient income so that the spousal maintenance may end. It may be that it can be agreed that the maintenance may be reduced or end, or it may be necessary to make an application to the court for a variation application.
The legal test is whether the receiving party can adjust without undue hardship.
