International Divorce and Brexit

SPECIFICITIES OF ENGLISH LAW

Divorce law works differently in different countries. In England, the law tends to be generous toward the financially weaker party. This has led to England being known as the “divorce capital of the world”. Pre-nuptial agreements are also treated differently in England than in other countries.

For these reasons, it is wise to take advice from a lawyer in the other relevant country to be sure where it would best suit your situation to issue divorce proceedings. It’s not uncommon for both parties to issue separate proceedings, one in England and the other abroad.

Because of the variety of different rules at play, international divorce can be especially complicated and we would advise you to seek legal advice. Speed is of the essence, there is value in being the first in issuing your petition.

Even if you consider other methods of resolving your case such as mediation, collaborative law or a period of couple’s counselling we advise you to first seek advice from a divorce lawyer and outline your situation so that if those methods fail your position is protected.

CHECK-LIST TO FILE FOR DIVORCE IN ENGLAND AND WALES

You can issue a divorce petition in England or Wales, if:

  • when you begin divorce proceedings, both you and your partner are habitually resident in England or Wales
  • both you and your partner’s last main residence was England or Wales and one of you still lives there when divorce proceedings begin
  • at the time the divorce proceedings begin, the responding spouse is habitually resident in Wales or England
  • for 12 months prior to the start of divorce proceedings, the party applying for the divorce has been living mainly in Wales or England
  • for 6 months prior to the start of divorce proceedings, the party applying for the divorce has been living mainly in England or Wales, and is also domiciled there
  • you and your partner are domiciled in England or Wales when divorce proceedings begin

  • no other court of a “contracting state” to the Brussels II Revised Regulation has jurisdiction, which would happen if the petition was first filed in an EU state except Denmark, and either you or your partner is domiciled in England or Wales when divorce proceedings start.

If you are able to satisfy one or more of the above criteria then you can start divorce proceedings in England or Wales. As this is a complex area, we would recommend you obtain legal advice.

Domicile is a concept peculiar to England and Wales. It refers to the country that a person treats as their permanent home, or lives in and has a substantial connection with. Your domicile of origin is the country where you were born. Under English law it is also possible to have a domicile of choice, the place you consider to be home. This can be a country you have not lived in for many years.

IMPACT OF BREXIT

Does Brexit change which court or country has jurisdiction over your divorce? In order to avoid different orders for the same divorce being handled in different ways in competing jurisdictions, EU States (other than Denmark) are subject to the Brussels II Revised Regulation. This states that in principle the country in which the divorce proceedings are first issued has jurisdiction. Even a matter of minutes can make the difference. This Regulation will continue to apply in England and Wales at least until March 2019 and most likely until 2021.

Following Brexit, we will no longer be part of the EU, and this means we will no longer be part of the Brussels II Revised Regulation. It is not yet known what the new rules will be after Brexit will have been implemented after 2019.

NON-EU SITUATIONS

Where one of the countries competing with England for jurisdiction is not an EU State the situation is more complicated. Because jurisdiction will not automatically go to the country where the earlier claim was filed, the English court will instead have to decide whether it is the most convenient place to hear the dispute. This will depend on matters such as where you and your spouse are living, where your assets are, and what relief is available in the competing jurisdiction.

PARALLEL PROCEEDINGS ABROAD

If there are court proceedings in any countries outside England and Wales relating to your marriage that could affect its validity, please note that international divorce is extremely complicated and time sensitive, and so we recommend you take advice from an international divorce lawyer as soon as possible if you do not agree with the proceedings continuing in this country. Sometimes it can make a major difference to the resolution of financial issues which country the divorce takes place in.

International divorce is therefore particularly complicated, and it is crucial to take legal advice. Speed is vital to ensure that you are first in issuing your Petition.

If there are already proceedings for divorce, or other proceedings challenging the validity of your marriage, in another country, then what happens next will very much depend on the type of proceedings and where they are located.

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