International Divorce FAQ
There are important potential financial implications varying between different legal jurisdictions for divorce.
One of the most important things to understand is that the approach of the English courts uses a principle of non-discrimination.
This means the English courts recognise all types of contributions made by each party towards the marriage. Consequently, if 1 party has stayed at home, his or her non-financial contribution is treated as equal to that of the other party who may have been earning money.
Whilst this is the starting point, much will depend on the specific facts. In contrast courts in other countries can take a far more strict and literal approach on divorce, focusing on specific, measurable financial contributions.
As a result, this can disadvantage the party who has not been earning money but has contributed in other ways.
An additional reason the English courts are valued and respected is the strong approach towards full financial disclosure of assets by both parties.
It is unfortunately not unusual in high value divorces, divorces with an international aspect or where assets may be complex or in corporate structures for there to be attempts to avoid disclosure or hide money or assets.
Other jurisdictions, including Germany, France and Spain as examples, are generally not as rigorous in ensuring disclosure is full and frank.
Yes if 1 of the married couple can demonstrate legally either habitual residence or domicile.
The starting point is that with European countries, the courts of those countries normally recognise that if both parties try to issue divorce proceedings in different countries, the party who issues first will determine the jurisdiction. Of course after proceedings have been issued there may still be disputes over habitual residence or establishing domicile.
This is a complex yet often very important aspect of divorces with high value, complexity or where the parties have moved from country to country so legal advice should be sought.
We would be happy to assist.
Habitual residence in legal terms is where you have closest ties.
Commonly this is where a party lives or works Regularity is another potential aspect for people who move around a lot but it is key to understand that habitual residence can only apply to one location at any time.
The English courts will accept jurisdiction is granted if:
• Both parties are habitually resident in England or Wales;
• Both parties were habitually resident in England or Wales, and one still is habitually resident;
• The Respondent to the proceedings is habitually resident in England or Wales;
• The Petitioner has been is habitually resident in England or Wales for not less than 1 year before the petition is issued.;
• The Petitioner can show domicile in England or Wales and to have been living here for 6 months prior to issue of the Petition;
• Both Petitioner and Respondent are domiciled in England and Wales;
• If no Court of an EU contracting state has the relevant jurisdiction; or
• The Petitioner or the Respondent is domiciled in England or Wales when the Petition is filed.
Domicile is legally defined as being where a person voluntarily decides to live, with permanent intention As with habitual residence, a person can only have one domicile at a time.
Domicile can be based on origin, acquired automatically at birth and generally based on a person’s father’s domicile. In addition, d domicile of origin is never lost completely but will be put on hold if a person chooses a different domicile, this is known as domicile of choice.
A domicile of choice depends on demonstrating that a person is living in a different country from his/her domicile of origin and, crucially, intends to make that new country his/her home permanently, unless or until something happens to make him/her to change their mind.
If a case has started in the UK, international rules from the Hague Convention apply. Member states co-operate to assist with speedy resolutions to child custody cases
Member states first establish in which country a child is in ‘habitual residence’ and under the Convention must enforce the laws of the country where the child has habitual residence. This can mean the return of a child from 1 country to another.
In relation to divorce generally, rules requiring a petitioner to prove residence or domicile are still likely to apply.
It is not clear at the moment what will happen when the UK fully exits the European Community, but it is likely that things will remain largely unchanged in terms of EU wide enforcement of child and family maintenance orders made because the UK and the EU countries are all signatories of the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.
Reciprocal Enforcement of Maintenance Orders (REMOs) are international agreements between countries designed to assist parents to recover child maintenance where the other party now lives abroad.
There are 101 countries which currently have REMO agreements in place with the UK.
It is important to note that REMO applications are enforced in accordance with the laws of the country where the paying parent is living.
REMO’s are not usually needed if the liable parent is working for a British company abroad. Maintenance in this situation can usually still be enforced in the UK.
Some of the more common countries where a REMO may apply include Czech Republic, Ireland, New Zealand, Spain, Denmark, Nigeria, Italy, Norway, Australia, Pakistan, Sweden, Switzerland, France, Belgium, Poland, Ghana, Turkey, Greece United States (excluding Alabama, Mississippi, South Carolina and District of Columbia) Hong Kong, India. Netherlands, South Africa
The UK courts cannot:
• compel foreign courts to enforce maintenance orders; or
• to control the speed of enforcement in other jurisdictions.
The Hague Convention also includes provisions whereby the signatory countries recognise formal legal separation.
If you got divorced abroad, you may need a new order from the courts in England and Wales in relation to UK-based assets.
This is not straightforward because the English courts would need to be satisfied about your connection with the UK and will also consider whether there is a current treaty in place between the UK and country where you divorced.
Having a divorce which has legally taken place in a non-UK jurisdiction recognised as having legality in the UK is very important because it may impact your ability to remarry, create complications with wills and inheritance, and the finances going forward, so it’s important to get legal advice on your exact circumstances and what to do.
We’d be happy to help.
The short answer is in principle yes but it very much depends on where the assets are. We have good contacts with lawyers in lots of other countries to maximise the chances of being able to enforce any UK order over foreign assets in a divorce settlement.
For obvious reasons it can be vital to ensure that any asset which may be part of a financial divorce claim remains preserved until the final aspects are resolved. This is especially important in terms of ensuring that assets are not transferred to another country.
Freezing injunctions against bank accounts, assets or properties are a possibility but applying for injunctions is very high risk, expensive and must be based on compelling evidence.
Where a freezing injunction order is made against assets on divorce and the assets are abroad the order will often be a worldwide freezing order.