International Divorce and Separation

In today’s world, many separating couples have international elements to their relationships.

For instance, they may be living or working abroad, have assets in different countries with different jurisdictions or one or both members of the separating couple may hold citizenship in several countries. The conundrum for separating couples in such circumstances is ‘where should I start divorce or dissolution proceedings?’.

Jurisdiction

The first thing to consider is what countries have jurisdiction to deal with the divorce or dissolution of the civil partnership and this will depend on the individual laws of each country.

For instance, to start a divorce in England and Wales, a person must satisfy one of the following grounds:

1. The separating couple are habitually resident (i.e. live there regularly) in England and Wales;
2. The separating couple were last habitually resident in England and Wales and one of them continues to reside there;
3. The person responding to the divorce or dissolution petition is habitually resident in England and Wales;
4. The person starting the divorce or dissolution proceedings is habitually resident in England and Wales and has resided there for at least one year immediately before starting the proceedings.
5. The person starting the divorce or dissolution proceedings is domiciled (i.e. the country you consider to be your permanent home) and habitually resident in England and Wales and has resided there for at least six months before starting proceedings.
6. The separating couple are both domiciled in England and Wales; or
7. One of the spouses or civil partners is domiciled in England and Wales.

It is important to take specialist advice about the jurisdictional requirements of the country where a person is seeking to start divorce or dissolution proceedings. We work closely with a network of international family lawyers who can help our clients understand which countries they may be able to divorce in.

If the separating couple meet jurisdictional requirements to start divorce or dissolution proceedings in multiple countries, then the next thing to consider is how the courts of each country approach divorce and financial matters. Ultimately, the person seeking the divorce or the dissolution of the civil partnership will want a favourable outcome.

In terms of dealing with finances, the person seeking the divorce or dissolution of the civil partnership should consider the type of orders the court can make in each jurisdiction. For instance, they may want to look into whether the court can order a clean break (i.e. terminating their financial ties), how pre-marital assets or post-separation acquired assets are dealt with or whether the courts are likely to order inheritance and gifts to be shared.

Consideration should also be given as to the court’s approach to a nuptial agreement (if applicable). For instance, in some jurisdictions, prenuptial agreements are binding on the separating couple e.g. France.  However, elsewhere, such as in England and Wales, the agreements are not legally binding but the court do give them significant weight, and, provided the agreement fulfils certain criteria and meets the needs of the separating couple, the court tend to not interfere.

Some courts can also order spousal maintenance payments to be made to the other spouse or civil partner (known as ‘alimony’ in some countries). In England and Wales the court will carefully consider the needs of each party and can grant a long or indefinite term of spousal maintenance. In other countries, little or no spousal maintenance can be granted at all. For instance, in Scotland, spousal maintenance can only be awarded for a maximum of three years.

Aside from the type of orders the court can make, consideration should also be given to the court procedure within each jurisdiction. For example, in some countries, divorce or dissolution proceedings can be dealt with at a slow pace and it may take a few years before the divorce and financial matters have concluded.

Countries also deal with financial disclosure differently and some courts have greater powers to order full financial disclosure from the separating couple and can penalise the spouse or civil partner who is not complying with their disclosure obligations. However, in other countries the court’s authority to order disclosure may be more limited.

The separating couple should also give due consideration to the enforcement powers of the court in relation to a breach of the financial order and legal advice should be sought in relation to the process of applying for enforcement action. Understanding the enforcement of an order is important if a spouse or civil partner does not comply with the terms of any financial order.

There are also other practicalities to consider such as the costs of the legal proceedings in each jurisdiction and any language or travel implications.

Sometimes, the separating couple can disagree on the appropriate jurisdiction to deal with the divorce or dissolution and financial matters and this can result in a forum dispute. Forum disputes are dealt with in accordance with the rules of each jurisdiction and the aim of the court is to establish which country’s court should deal with the divorce or dissolution proceedings and financial matters. Forum disputes can end up being a very lengthy and expensive endeavour, so it is often preferable for the separating couple to come to an agreement about the appropriate jurisdiction direct with their spouse or civil partner or via solicitors.

For more advice on jurisdiction or international family law issues generally, please contact a member of our family team.