For most divorcing couples, the jurisdiction where a divorce takes place, is neither here nor there, and unless the respondent wishes to challenge it, is something that is rarely taken into account. But for high-net worth individuals containing international components, jurisdiction is an essential consideration because it can be more advantageous to issue divorce proceedings in one jurisdiction than another.
For most divorcing couples, the jurisdiction where a divorce takes place, is neither here nor there, and unless the respondent wishes to challenge it, is something that is rarely taken into account. But for high-net worth individuals containing international components, jurisdiction is an essential consideration because it can be more advantageous to issue divorce proceedings in one jurisdiction than another.
If you have a family law issue and require legal advice to understand your options, contact specialist divorce solicitor Jemma Slavin of Stowe Family Law. Regional Director at this well-respected specialist family law firm, she is committed to offering a bespoke service to her clients which focuses on their specific needs and objectives.
What is jurisdiction in divorce, and why is it important?
Divorcing couples who have multiple nationalities and/or domiciles in different countries may have a choice as to where they divorce. This is known as the “jurisdiction” of the divorce. Because each country has its own divorce laws, the choice of jurisdiction can make a tremendous difference to the outcome, such as how long the divorce takes, what assets each party walks away with, and decisions surrounding arrangements for children. Failure to secure the most appropriate jurisdiction for your case could result in a detrimental outcome. If you fear your children being abducted, for example, then divorcing in a Hague Convention jurisdiction country arguably makes it easier to force the other party to return the children.
The rules governing jurisdiction vary from country to country and so legal advice must be obtained promptly in each relevant jurisdiction to establish which best suits your circumstances.
Who can get divorced in England and Wales?
Regardless of where you got married and your nationality, you can apply for a divorce in England and Wales if at least one of the following conditions is satisfied:
- Both spouses are habitually resident in England and Wales
- Both spouses were habitual residents as a couple in England and Wales, and if one of you still lives here
- You want to begin divorce proceedings and your spouse is habitually resident in England and Wales
- You want to begin divorce proceedings and have lived in England and Wales for at least 12 months
- You want to begin divorce proceedings and have lived here for 6 months, and are also domiciled here
- Both spouses are domiciled in England and Wales
Domicile means the place you consider home and to which you intend to return. Changing your domicile by permanently moving to another country and severing all ties with your domicile of origin (where your father was domiciled when you were born) is possible. Habitual residence is simply where you live when your divorce proceedings start.
Why you may choose England and Wales to get divorced
In England and Wales, all assets are generally thrown into the matrimonial pot, not merely the assets acquired during the marriage. During financial proceedings, parties are required to provide full and frank disclosure of all their worldwide assets, with the court having a wide discretion to distribute them in such a way as to achieve a fair outcome. Other countries may take a different and less generous approach when dividing assets, pensions, investments, and spousal maintenance awards. The jurisdiction chosen can mean a dramatically different divorce settlement and be decisive on who takes care of the children.
Can jurisdiction be challenged?
Disputes regarding jurisdiction can be costly and take a long time to resolve. This is particularly so when each party has commenced divorce proceedings in a different country, each having their own vested interest in pursuing the relevant jurisdiction. The parties would then need to weigh the merits of their case against the legal fees they could face by challenging the jurisdiction. Despite this consideration, the cost of securing the jurisdiction of your choice can achieve a substantial saving in respect of the ultimate financial award.
Although the country in which proceedings are first issued is not conclusive of where the divorce will take place, it remains a very important factor in deciding between competing jurisdictions. If the divorce itself has proceedings overseas, it is possible in some circumstances to apply to an English court for a further financial award if the provision made by the overseas court is not considered to be adequate.
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