International and Jurisdictional Disputes
- Asset Freezing Injunctions
- Complex Financial Negotiations
- Complex Offshore Corporate and Trust Entities
- Court of Protection
- Divorce and Bankruptcy
- Enforceability of foreign orders
- Enforcement of English Court Orders abroad
- Financial Provision following a Foreign Divorce
- High Value Family or Business Assets
- Inheritance Problems
- International and Jurisdictional Disputes
- Pensions Issues
- Tax Consequences of Divorce or Separation
- Tracing Hidden Assets
We pride ourselves on providing prompt accessible advice and fully understand the intricate rules surrounding jurisdiction. An international couple may be able to get divorced in more than one country.
The rules are complex and differ depending on whether one of those countries is in Europe. Most European countries are signatories to an international convention called Brussels II which, amongst other things, governs jurisdictional disputes on divorce.
For someone to start divorce proceedings in the UK, or another European country that is a signatory to Brussels II, one of the following must apply:
- The spouses are habitually resident in that country; or
- The spouses were last habitually resident in that country, insofar as one of them still resides there; or
- The respondent is habitually resident in that country; or
- In the event of a joint application, either of the spouses is habitually resident in that country; or
- The applicant is habitually resident in that country if he or she resided there for at least a year immediately before the application was made; or
- The applicant is habitually resident in that country if he or she resided there for at least six months immediately before the application was made and is either a national of the member state in question, or, in the case of the United Kingdom and Ireland, has his or her domicile there; or
- The nationality of both spouses, or, in the case of the United Kingdom and Ireland, of the domicile of both spouses.
Disputes can arise about whether either or both parties fulfil those conditions. Under Brussels II, provided that one of those conditions are met, there is a strict ‘first in time’ rule, which means that divorce will proceed in the country where the divorce papers have been filed first. Urgent advice should therefore be sought if this is a possibility.
There can be very different financial outcomes if a divorce proceeds in, say, France rather than in England. The above rules mean that, for example, a French couple living in London for many years can be divorced either in England or in France.
The strict ‘first in time’ rule under Brussels II does not apply in the event that there is a dispute between England & Wales on the one hand and a non-European country on the other. In that case, the English court will look at a number of factors when deciding where the divorce and financial proceedings should take place. In broad terms, the test for the English court is which is the most convenient forum for the divorce to take place: England or the court of the other country. This can involve a detailed look at where the family’s centre of interest lies: where the assets are, where the family lives, where the children go to school, etc.
Many litigating couples have been criticised by English judges for ‘forum shopping’, which means trying to gain advantage by filing for divorce in a favourable jurisdiction. The English court is perceived as being generous towards wives compared to many other jurisdictions, and willing to look at a wide variety of assets, including trusts, when deciding on appropriate financial provision. For these and other reasons, there will always be spouses seeking to litigate in England and spouses trying to avoid that outcome.
We pride ourselves on providing prompt accessible advice and fully understand the intricate rules surrounding jurisdiction.
We are regularly engaged to supervise multinational proceedings in many international jurisdictions.
Alex Carruthers attending Cambridge Forum on International HNW Family LawRead More
Alex Carruthers and Caroline Park chairing the ThoughtLeaders4 HNW Divorce Circle 2023Read More
Mark Harper comments on the Law Commission’s review into how financial assets are split after divorceRead More