Divorce wars

Who wins the race to claim jurisdiction? Anna Hunter, director at Major Family Law, examines the question

As the world gets smaller and social mobility becomes increasingly international, it is far from uncommon for families to move abroad to live and work, whether for a defined period or with the intention of resettling permanently.

If you’re living abroad when your marriage breaks down, what happens next?

You may assume that the appropriate place for divorce proceedings could be the country where your marriage took place, where you are citizens, or where you are living at the time of the breakdown of the marriage. However, there are many international families who will find that more than one country may be able to deal with the issues arising on divorce.

Where the parties are, or have been, living within the European Union, EU regulation 2201/2003, commonly known as Brussels II Revised (B2R), governs family law disputes to determine which country (legal jurisdiction) should have precedence over hearing a case. In very basic terms, it provides that the jurisdiction where proceedings are lodged first will have to deal with the case.

The result is to effectively create a race to issue proceedings between separating couples. The reason for this is that different EU jurisdictions vary widely in their approach and generosity to economically dependent spouses, and therefore it pays to choose a jurisdiction favourable to the particular applicant’s circumstances, which in turn are likely to be very different between an estranged husband and wife.

Different countries approach the financial arrangements between couples on divorce in very different ways. Procedures also vary from country to country, particularly in relation to disclosure of financial affairs. This means that a couple with the same financial resources (house, other capital, income and pensions) could end up with very different financial arrangements if their divorce is dealt with in England than if it were dealt with, for example, in France or one of the US states.

Issuing proceedings and the choice of jurisdiction requires not only swift action, but tactical decision making where more than one jurisdiction is an option. To be eligible to issue proceedings in England and Wales, the criteria rely on periods of ‘habitual residence’ or ‘domicile’.

Habitual residence is a self-evident concept, broad enough to include non-citizens, and straightforward to establish. It becomes a little less obvious with the concept of domicile: everyone has a domicile of origin according to where they were born, but it is possible to change this through choice, which relies mainly on personal intention. Under English law, you can be domiciled in a country even if you have been away from it for many years, if you still consider it to be home.

So where marriages have any international aspect to them, whether by virtue of the nationalities of the parties, or their respective places of residence at the time proceedings are issued, the situation can become a legal minefield.

Article 19 of B2R provides that when the courts in a particular EU member state receive a divorce application involving a spouse living in another state, they must suspend proceedings until precedence has been established, which in itself can and has caused significant financial implications as well as delay for divorcing parties while they argue over where the divorce should take place before proceedings even get underway.

For those reasons, it’s vital to choose a legal advisor carefully. This is a specific field of expertise and incomplete advice can be costly.  Remember also that specialist lawyers such as ourselves bridge the international gap with digital services such as videoconferencing and links with English-speaking regional firms in foreign jurisdictions.

www.majorfamilylaw.co.uk

@majorfamilylaw

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