Ep 24 - International divorce

Today, we're going to have an international focus to the podcast and talk about how divorce works for international couples. We're very lucky to be joined by our colleague Ciara Moore, a principal associate in our London team. Ciara advises on all aspects of family law with a particular interest in high value and international cases. Welcome, Ciara.

Ciara: Hi. Thank you.

Jen: So before we start, one of the legal terms that will come up a lot today is the word jurisdiction. In everyday language, jurisdiction refers to the authority of the court to hear and decide a case. So if you can't establish that the court of a particular country has jurisdiction, then your case cannot proceed there.

So, for today's myth, how about this? We got married in England, so that means we can get divorced here too. What would your answer to that be, Ciara?

Ciara: Well, it sounds like common sense, doesn't it? You start the story in one place, so surely that's where it ends. Legally speaking, that's not necessarily the case. The law doesn't care so much about where your marriage certificate was signed or where the celebration took place. What really matters is where your daily life is, or the country where you still have a significant connection.

So, in terms of busting the myth where you got married doesn't automatically give a country the right to deal with your divorce. The legal system is instead going to make an assessment based on where you live, where your lives are entangled, and what connections you still have. So, if you imagine a couple, say they got married in the UK and moved to Singapore for work and have been living there for five years, if they separate, it's far from guaranteed that England will be the right place for the divorce.

On the flip side, a couple who got married on a beach in Mauritius but have lived in Manchester ever since. In that case, it's absolutely possible to divorce in England. So, in a nutshell, it's not where you got married, it's where you're unravelling the marriage that counts.

Jen: I think that's a really useful high-level overview. Thank you. And what I think possibly complicates this question of jurisdiction is the fact that there's some quite specific legal terminology used. I think you've been really helpful in talking about sort of where you're based and where your home is and things. But anyone starting a divorce application in England is going to be confronted by terminology like habitual residence and domicile.

So I wonder, could you sort of explain a bit more about those terms and what they mean in practice?

Ciara: Absolutely. So yes, the court looks for two main types of connection: domicile and habitual residence. Habitual residence is where you're living your life right now. That's things like where your home is, where you work, where your children go to school, where you go to the dentist, where your dog gets walked. Essentially, it's about where your life is actually rooted.

And then separate to that is domicile. That's your more enduring connection. Think of it as a kind of legal loyalty or allegiance to a country, even if you're not physically there. So maybe you've been living abroad for work, but your main home is still in the UK. Perhaps your pensions here, perhaps your family's here. And perhaps ultimately, this is where you plan to return to. And that kind of tie might still pull you back into the English court system.

I would say it gets more complicated when both partners have different connections. One person might be based in London, say the other in New York. One might be from Spain but has built a life in England. And these overlapping ties mean that more than one country could have jurisdiction. And often that's where things can get contentious.

A few years ago, under EU rules, the law worked on a first come, first served basis. So what that meant was, whoever issued divorce proceedings first essentially won the so-called jurisdiction race. That led to some truly bizarre cases, lawyers have seen spouses dashing to courts in different countries, some even catching early flights just to get proceedings filed in a particular place.

Following Brexit, that rule no longer applies in England. But the issue of timing hasn't disappeared. So if two countries have a potential claim, it can still turn into a legal tug of war, with each side arguing that their chosen country is the right one. And all of that means timing along with preparation still matters.

Tim: So it's probably fair to say that for the vast majority of people, their habitual residence and their domicile are likely to be the same place. But it's for those international couples that have potentially moved around, or maybe worked abroad, or lived abroad, or were born in different countries, that this becomes quite important.

Ciara, I think it might be helpful just to set out, from the court's point of view in England and Wales, what are the criteria for them being able to accept a divorce petition?

Ciara: So yes, there's criteria that the court looks for to satisfy itself, that the applicant is allowed to obtain a divorce in England and, crucially, then obtain financial relief afterwards.

And in order to succeed in bringing your application, you need to meet one of the following criteria. Number one is both you and your spouse are habitually resident here. The second is the person receiving the divorce petition is habitually resident here. Next is the applicant who is last habitually resident along with their spouse as a couple here, and at least one of them still lives here. Fourthly, the applicant is habitually resident here and has been for 12 months as a minimum. Next is the applicant is domiciled in England and Wales and has also been habitually resident here for six months. You're both domiciled in England and Wales, or one of you is domiciled in England and Wales, sometimes referred to as dual domicile.

Jen: That's really helpful. Thank you. And I think it goes to highlight that perhaps if you're both connected to England then things are perhaps quite straightforward. You can tick the first of those options, you’re living in England, nice and straightforward. But there can be those situations where perhaps only one of you has a connection to England that you do then also have to factor in how long that person has had their connection to England to be able to claim jurisdiction here.

Ciara: That's right.

Tim: So we've talked quite a bit about habitual residence and domicile here. Does nationality have any part to play in all of this?

Ciara: Not necessarily. In England and Wales, nationality by itself doesn't get you jurisdiction. So you can hold a UK passport but say you're living in Canada working in Canada, raising children in Canada. The courts here might say thanks, but no thanks. That said, some countries do allow nationality to trigger jurisdiction.

Examples that come to mind are France, Italy, Spain. And those countries often take the view that if you're one of their nationals, they can deal with your divorce even if you haven't lived there in years. And that can lead to some really tricky jurisdiction clashes.

We also have to bear in mind the implications of some of the more complex legal systems in parts of the world where religion or cultural frameworks influence family law. In some Middle Eastern and South Asian jurisdictions, for example, nationality and religion might dictate whether the local courts even recognises your marriage or will grant a divorce. And indeed, some countries don't recognise civil partnerships or same sex marriages, for instance, all of which can make international cases even more complex. So yes, your passport might matter, just not always in the way that you think.

Jen: And I think all of that comes together to ask the million-dollar question of what happens if there's more than one country that people can get divorced in?

Ciara: Yeah, so this is actually the interesting part where jurisdiction becomes not just a legal concept, but actually a strategy. And that's because every country handles divorce a little bit differently. And the differences can be massive and significant, particularly when it comes to outcomes financially on divorce.

Take spousal maintenance, for example. In England, we have a broad discretionary system that looks at fairness and needs and standard of living during the marriage. Conversely, in Germany there were rigid formulas and shorter timelines. And I understand that in Sweden, spousal the maintenance barely exists.

Then we have to think about cultural approaches to financial outcomes. Some countries take a more conservative view on dividing assets, others are more egalitarian. Some prioritise children's welfare above all else. Others lean towards very specific principles regarding parental rights, and even how long the divorce takes can vary widely. So lots to consider.

Tim: It sounds like it's important for people where this is likely to be a consideration to take advice as early as possible, so that they can understand the impact and the potential implications of the countries involved.

Ciara: I agree. And, you know, invariably when clients come in with international connections, the conversation is not just can we divorce here, but should we?

A savvy client takes advice early, and that advice will enable them to consider things around where to file, understanding what country they'll get a fairer financial settlement. They may even begin to quietly prepare paperwork while exploring whether their spouse is likely to issue first. They might also consider on advice how and when to serve papers, particularly if their spouse is abroad.

All of these steps naturally need to be handled carefully, because there are so often idiosyncrasies and peculiarities in the rules which apply, particularly around disclosing information that technically belongs to your spouse or in respect of international service. So, in a nutshell, it's important to act decisively but also tactically and with good legal support.

Jen: Yeah, I've certainly had cases in the past where it's been fairly straightforward to get your divorce application issued, so processed by the court, but then there have been really big hurdles in actually trying to make the other person aware that you started the divorce and actually serve those papers on them, particularly if the person is based in another country where perhaps they don't have a postal address.

Finding out how you're going to get the papers to them can be quite complicated.

Ciara: I agree. I've done many cases where clients weren't forewarned of those practical and logistical considerations, and it often creates a needless headache for clients and lawyers alike, because it can give rise to a last minute scramble around how to get documents served and find out practical information that could have been to hand if earlier planning had been undertaken, thereby avoiding an unnecessary element of complexity in an already stressful process.

Tim: So Ciara, earlier you mentioned that the rules used to be that the first person that issued meant that they'd won the jurisdiction race. Can you just tell us what the current situation is after Brexit?

Ciara: Yes, absolutely. Prior to Brexit, the first past the post regime was in place, which created a lot of frenzy at the outset of the process, to be the first in time to issue your proceedings and thereby secure the jurisdiction of that court. Because under those EU rules, if that occurred in England, other EU states would be required to automatically stay or pause their proceedings in favour of the court first secured.

These days, post-Brexit, the English court apply a test called Forum Convenience, which is a legal term which essentially means the most appropriate forum for the case. It's important to understand that post-Brexit, the English courts don't automatically give up the application or their ability to consider it just because another court is already involved.

And all of this means the judge will look at a wide range of factors to determine the suitability of England to consider the issues and determine outcomes. The factors the court will look at include where the parties live, both presently and during the marriage, where the children go to school, the languages they speak, and whether they both speak the languages of the competing jurisdictions, where the money is, where the property is, where other assets are situated.

Importantly, it also looks at which country's law can best handle the issues in the case. And more generally, I suppose, where the interests of justice would be best served. And linked to that, the court will also consider what outcome is likely in each place, and that's weighed against its consideration of fairness.

It will look at will one spouse get proper legal representation in the other country? Will there be meaningful financial provision? Can both parties participate fully? If not, England might just say, thanks, we'll take it from here.

On the other hand, and I experienced this a few weeks ago in a case that is ongoing in the High Court, and I observed and we discussed this increasing tendency of the English court to move away from so-called judicial imperialism. And put simply, once upon a time, there was an era where the court's approach could be interpreted as England just accepting cases because the court here thinks it knows best and its principles accordingly should apply.

Increasingly, however, judges are really reluctant to impose that sort of approach, and it's all based on avoiding any implication that England considers itself to be a superior jurisdiction, particularly when there's another competent jurisdiction where the court is satisfied a proper process will be followed.

I think that's best understood by way of an example. A couple lived in Spain for a year, for years, say. And imagine the husband returned to England and tried to start proceedings here. The court may find that the marriage had no real connection to England anymore, and it wouldn't be outside the realms of possibility for the case to then be bounced back to Spain.

That said, an opposite example would be, in a scenario where, say, a British woman had been living in Dubai with, say, her American husband. Imagine he files there to try and avoid spousal maintenance. She then returns to England and issues an application here. The court would, in those circumstances, look at the likely outcome in Dubai. It would take into account that there would likely be minimal financial provision, limited entitlements and say, actually, this case belongs in England.

So it's difficult to predict, and it's a finely balanced exercise and each case turns on its facts and the factors that clients think will weigh heavily in their favour in terms of establishing a connection may not necessarily be given that much weight.

You can also get quite factually unusual cases that really reveal the lengths that people will go to, to try and secure their preferred jurisdiction. The courts have seen people trying to claim jurisdiction via an Airbnb rental or a P.O. box. Apparently, there are countries where you can see divorce online without ever stepping foot there. But yes, if it looks and sounds like a loophole, someone's probably tried it and most likely to limited avail from the perspective of the English court.

So say you've contested jurisdiction and forum and you lose and you might still have a lifeline. The law allows, in certain circumstances, the court to step in after a foreign divorce if it thinks the outcome was really unfair and provided there's a strong enough connection to England. It's not a straightforward procedure, and you need the court's permission, But if those boxes are ticked, the court can make financial orders here, even if the divorce happened abroad.

So it is a second chance at achieving a fair settlement. Not guaranteed. Not simple. Probably beyond the scope of this conversation, but worth mentioning that in specific cases it serves an important purpose to avoid long term injustice.

Jen: I think that's a really valuable point to highlight. And it's kind of showing that at every stage, it's not just the divorce process that you're thinking about, but it's what doors does that open from a financial perspective as well. And there will be other podcasts in the series that we can hopefully look at the financial side of international divorces in a bit more detail.

Tim: Ciara, you've helpfully taken us through the rules of court you’d look at when considering a divorce petition. We've spoken about the importance of thinking about the connection to the country, whether it's through the habitual residence or domicile.

So I think what would be really helpful is just to finish up with some of your top tips for clients that perhaps find themselves in this situation where there are various international connections.

Ciara: Absolutely. Front and centre is, get advised early. That means see a lawyer before you do anything, before your spouse does, before you even whisper the D word. International divorce is about so much more than just paperwork. It's about strategy. It's about being forewarned is forearmed. It's about making informed decisions. And in my experience, the clients who plan ahead tend to come out better emotionally, legally and financially.

So a prepared client like to gather financial paperwork that's relevant to their own personal assets and where they're situated. They'd get advice about how different jurisdictions would treat the case. They'd think about timing and where they reside. And I'm not necessarily endorsing this approach, but I think it's worth mentioning the phenomenon of forum shopping, where litigants execute short term moves to London to establish habitual residence. It, of course, raises ethical questions, but it is, for good or for bad, a strategic step that certain individuals contemplate.

Next on my list is staying quiet in terms of discussions with their spouse until they've got a plan. And it's also important not just to view this in a prism. You have to consider immigration issues, tax considerations and children issues to potentially, particularly if there's a prospect of international relocation looming in the background, if one jurisdiction prevails over the other.

In a nutshell, my five top tips are, as I've said, getting advice early, knowing your options, being prepared, thinking tactically. It's not just a formality, it's about protecting your future ultimately. And finally, don't panic if things go abroad, England might still have a role to play.

Jen: Those are some really helpful top tips there. Thank you. And I think the only point I would add on is that just because you have to perhaps start in this quite careful and tactical way with the divorce, that doesn't mean that the options later down the line don't then open up in terms of mediation, you know, all these sort of alternative ways of resolving things. You can still have that focus, but you still need to start with the proper planning and the careful start to the process that you've outlined.

Ciara: Yes. I mean, I completely agree, and I have a case continuing at the moment where there is a, on the face of it, a contested jurisdiction battle unfolding, but there are quite well, strategically coordinated, joined up conversations and negotiations happening via this firm. The other side's London counterparts, as well as their respective teams in a European jurisdiction.

So it's been quite interesting to see that unfold. But ultimately there is going likely going to be a negotiated settlement and a consensual outcome that will avoid the contested suit altogether. And so clients, I think, need to be aware that even if these quite technical legal battles are unfolding are in prospect, as you say, Jen, there's still ample scope to do things and consensually and resolve matters at an early stage.

Tim: Brilliant. Well, thank you very much for joining us today, Ciara. That's been really helpful. It's a very complicated area, and you've done a brilliant job at summarising and giving some helpful, practical top tips for people to think about.

As Jen mentioned earlier, we've got some other international focused podcasts in this series. So if there are any other topics or questions that anyone would like us to cover, then please get in touch in the usual way through our social media channels.