Kim Beatson, Partner and Camilla Fusco, Partner
Everyone who works with international clients knows that relocating abroad can be a very unsettling experience. The family faces a big task of finding a new home, getting it furnished, settling the children in a new school, coping with a new culture and adjusting to new jobs. To make it more difficult, all of these tasks must be accomplished without the usual support of family and close friends.
Sadly, all of these factors can take a toll on marriage. But what happens if a foreign national wishes to divorce an English husband/wife?
The first question to consider is which country will have jurisdiction over the divorce hearing. This issue is critical as divorce settlements vary enormously from one country to another and often, as we shall see, there is a definite “first mover” advantage in applying for jurisdiction in the most favourable location.
England is often called the divorce capital of the world as the English courts tend to be far more generous to wives than elsewhere. Many foreign nationals will be surprised at how easy it is to establish English jurisdiction.
The asset or income rich spouse can save thousands, if not millions, of pounds by shopping around for the most advantageous legal jurisdiction in which to divorce. Conversely, the wife who manages to achieve English jurisdiction for her divorce can achieve substantial financial advantage.
Who is eligible to divorce under English Law?
The rules are complex but the general principle is that jurisdiction can be granted if certain conditions as to domicile or habitual residence are met. These conditions can be extremely generous – for example, a non-domiciled petitioner may still be able to claim English jurisdiction simply based on habitual residence (which can be based on periods of residence as short as six months).
The main questions to be answered here relate to domicile and habitual residence. Domicile is a legal point which takes into account where you were born, as well as where you are living and where you intend to live ultimately. A specialist lawyer will be able to advise whether you are eligible for a divorce on this basis. Habitual residence is more straightforward as this simply refers to where you are living now. The general point to note however is that many foreign nationals (even on short-term assignments) who are working in the UK could be at potential risk of a more expensive divorce settlement than would have been the case back home.
EU Regulations
Under an EC Regulation (known as “Brussels II”) the rules for jurisdiction in all EU member countries (except Denmark) regarding Divorce have been harmonised. This means that in a situation where more than one EU member country could deal with the Divorce (for example where a French couple live in England) the country where the proceedings are filed first has exclusive jurisdiction. In other words whoever is “first past the post” in filing the Divorce proceedings will secure the jurisdiction of that country as it will take precedence over any other European country even if the other spouse subsequently files Divorce proceedings elsewhere. As a result it is extremely important to take specialist Family Law advice in different countries (if there is more than one potential jurisdiction applicable to a situation) and for very prompt action to be taken in order that the husband or wife can secure the “best” jurisdiction for him or her.
Indeed in extreme cases it may even be worth while making a “pre-emptive strike” in an overseas location rather than waiting for proceedings to be lodged in the English courts.
Born in the USA?
The situation in the US is different and varies from state to state. The US tends to be more favourable to wives than in many European locations although not quite so favourable as in England. Many states operate a community of property system and have prescribed “scales” of child support and alimony. The US courts tend to recognise pre-nuptial agreements far more readily than in other locations. However, US courts can be less ready to recognise overseas divorce settlements and , in some cases, custody and contact orders, so the greatest of care will be needed when considering such matters.
Official Government statistics show that over 40% of first marriages break down (this data relates to the UK but the US is not dissimilar). Couples with different nationalities suffer particular pressures and it would not be surprising if the percentage divorce rate was slightly higher for this community. As can be seen above, anyone originally from England and Wales can use the English Courts on the basis of domicile or “legal connection”.
Forum Shopping
The contrast between England and Scotland is stark. In England, joint lives maintenance obligations which terminate when (typically) a wife remarries or dies is relatively common place. In Scotland, spousal maintenance will usually last for three years only. In France, wives are expected to go back to work which explains why France has one of the highest rates of working women.
Forum shopping – choosing the best legal jurisdiction to your circumstances – is becoming more popular now because more people are moving from one country to another to live and work and marrying people from other EU Member States.
The cost of divorce papers being filed in an unfavourable jurisdiction can be staggering.
For example, an expatriate wife who has been living in Singapore for three years or longer (the minimum period of residence required to give Singapore jurisdiction to deal with the Divorce) may find herself facing Divorce proceedings in a country where her maintenance and capital claims will be treated much less advantageously than in England.
In some countries, such as Denmark, the Law restricts the period of time for which a wife can be awarded maintenance to relatively brief periods (perhaps one or two years) and as an absolute maximum to the length of the marriage. Often the amount of child maintenance and spousal maintenance is fixed according to prescribed rates or percentages applicable in that country, sometimes on a sliding scale. according to the payer’s level of income.
Most EU countries, with the exception of the UK and the Netherlands, exclude inherited wealth and pre-marital assets from the divorce settlement. Even more differences arise when it comes to the treatment of prenuptial agreements.
Pre-Nups
Prenuptial agreements are not strictly enforceable in the UK although the terms of such an agreement may be upheld by a Court when there has been full financial disclosure, where both parties have taken separate legal advice and there are no unforeseen circumstances such as children and a relatively short marriage.
In other jurisdictions, prenuptial agreements are generally binding.
Child Abduction
Great care should also be taken when one parent is considering a move from one country to another where children are concerned. Most EU countries together with the USA, Canada, New Zealand, Israel and Australia (amongst many others) are signatories of an international treaty concerning child kidnapping (“the Hague Convention on International Child Abduction”). Under this treaty if a child is removed or retrieved (without the other parent’s knowledge or consent) the parent who has removed them will be guilty of child abduction. (a criminal offence in England) and may well be compelled to return them to their usual country of residence by legal proceedings.
This could easily apply, for example, to an American mother who has been living with her husband and children in England and who decides at the end of a Christmas vacation at home in the US to remain with the children (without her husband’s consent) due to difficulties in her marriage.
First come, first served
We hope the above alerts you to the importance of choosing a jurisdiction and doing so quickly. It may be necessary to consult a solicitor in both potential jurisdictions in order to check which jurisdiction best suits. It is then a case of winging it to the appropriate Divorce Court before the other party gets wind of what is happening. Under European legislation, the jurisdiction for a divorce takes place on a first come, first served basis. He or she who issues proceedings first gets to choose the jurisdiction.
Kim Beatson is a Partner with Anthony Gold and Head of the Family Law team. She specialises in all area of family law, has her own mediation practice and is a trained collaborative lawyer.
Camilla Fusco is a Partner with Anthony Gold who specialises in family law with a special interest in applications with an international element. She is also a trained collaborative lawyer.
