fbpx

Divorce with foreign spouse

| 23 Ιανουαρίου 2018
ADVERTISEMENT

When a couple wishes to divorce but one spouse is not a UK citizen, the first step will usually be choosing where to divorce. This does not necessarily have to be the same as where the marriage took place. The citizenship, nationality, residence, and domicile of either party may all impact where each party wishes to file, and where the courts will find jurisdiction. We’ll explore each of these terms and what they could mean for you throughout this article.

Jurisdiction


ADVERTISEMENT

Jurisdiction exists where a court has been given the authority to hear cases and rule on legal matters within a defined geographical area. In order to have your case heard in a particular country, it is necessary to establish jurisdiction. Given that the country in which divorce proceedings take place can affect the financial outcome significantly, it is important to seek legal advice as soon as possible should you suspect that you may be able to eligible to file in more than one country. Speed is crucial; if your partner might wish to divorce in a different country where they might achieve a more beneficial outcome, there could be a race to issue divorce proceedings. This is known as a jurisdiction race. For couples looking to divorce in different countries within the EU, the Brussels II treaty will apply. This means that the first EU country (excluding Denmark) in which a party issues divorce proceedings will have jurisdiction (provided that person is found to have jurisdiction), to the exclusion of any other EU country the other party may file in at a later date. For countries outside of the EU, being the first person to issue may carry less weight and the courts may give more weight to the connection an individual has to that jurisdiction. If, however, one nation gets to the point of confirm the divorce and dissolving the marriage, this will often automatically halt proceedings in another.

Where to file for divorce is an important decision as some jurisdictions could result in a far more beneficial outcome. It is necessary to consider your own financial position and what the courts in different jurisdictions look at in divorce cases. Factors considered by the courts could include financial contribution, the role of the homemaker, whether there are children involved and also the length of marriage. A lawyer will be able to advise whether there is a choice in jurisdiction available to you, and which may be the most or least beneficial.

You can establish jurisdiction by looking at nationality, domicile and habitual residence. Domicile is the country that a person either lives in, has significant connection to, or somewhere they treat as their home. Habitual residence is where you are resident and intend to settle.

To file for divorce in England and Wales, it will be necessary to meet any of the following criteria:

  • when you begin divorce proceedings, both you and your partner are habitually resident in England or Wales;
  • both you and your partner’s last habitual residence was England or Wales and one of you still lives there when divorce proceedings begin;
  • at the time the divorce proceedings begin, the respondent to the divorce is habitually resident in Wales or England;
  • for 12 months prior to the start of divorce proceedings, the petitioner applying for the divorce has been habitually resident in Wales or England;
  • for six months prior to the start of divorce proceedings, the petitioner has been habitually resident in England or Wales, and is also domiciled there;
  • you and your partner are domiciled in England or Wales when divorce proceedings begin; or
  • no other court of a “contracting state” to the European Convention known as Brussels IIA has jurisdiction, and either you or your partner is domiciled in England or Wales when divorce proceedings start.

For those looking to divorce in England and Wales, jurisdiction may be found where a party can show that they are domiciled there. This concept of domicile includes not only domicile of origin, that is where the individual was born (the father’s domicile on the date of birth), but also domicile of choice. Under English law, it is possible to be domiciled in the country you consider home, even if you have not lived there recently. As it is only possible to be domiciled in one place, it is common for the domicile of choice to replace that of origin when a person moves to another country with the intention of settling there permanently.


ADVERTISEMENT

International divorce procedures

As discussed above, it is important to seek legal advice quickly where there is a risk of a jurisdiction race, or where there could be complications in establishing jurisdiction. It will be necessary to consider your domicile, residence and citizenship, as well as the location of your assets, and whether there are children involved. Using a foreign court for your divorce proceedings may benefit you financially but could have implications regarding child arrangements. Lawyers with experience in international divorce will be able to assist in deciding where is best, taking all factors into consideration, to file for divorce. Once jurisdiction has been granted, the divorce proceedings will then begin in that country, which will have exclusive jurisdiction over the divorce for its duration.

By Kate Williams – Graduate Trainee at Vardags
Tel: +020 7458 4352
10 Old Bailey
London, EC4M 7NG
email: london@vardags.com
Web: Vardags


Please be so kind as to ask our experts for your problem by completing the form you may find here and get the answer via our website, shortly.

Σχόλια

Σχετικά Άρθρα

ΟΙ ΕΙΔΙΚΟΙ

ΣΑΣ ΑΠΑΝΤΟΥΝ