Where should I get divorced?

International Family Law Partner Ursula Danagher analyses the considerations to be had when deciding where to get divorced.

Before deciding to divorce, you may wish to determine whether you satisfy the criteria to issue a divorce against your spouse in England.

This may be possible even if you do not live in this jurisdiction. It will depend on your individual situation, and your level of connection with this country.

If you do have connections elsewhere, it is essential to consider the likely outcomes in those countries and determine where might be most advantageous for you, and your family, for the divorce proceedings to take place.

Spencer West has offices across Europe and Worldwide together with wide and extensive network of lawyers working in different jurisdictions to ensure you make the best choice for you, and your family.

We can also assist you in determine the most favourable jurisdiction to resolve your divorce related financial matters, or indeed child related issues.

Jurisdiction / Forum Choice

Many families have close connections to more than one country, possibly because they were born or married outside of England and Wales, or they lived or worked abroad before or during their relationship.  So, on breakdown of relationship, you may have a choice.

Discovering this at an early stage is important, as the potential financial outcomes can be very different.

Specific expert advice is therefore required to determine the best jurisdiction for you.  This process is often referred to as “Forum Shopping”.

Timing can be vital

It may be necessary to act very quickly and without delay.  Within Europe, the general rule is that the country in which the divorce proceedings are first issued seizes the jurisdiction.  This can be irrespective of where their closest connection is.  This timing issue may be a factor in other parts of the World, but generally carries less weight.

It is also essential not to “tip off” your spouse if you are considering divorce as they may, as a result, issue proceedings in a jurisdiction more favourable to them.

How do I decide where to issue family proceedings? 

Well, firstly, what options might you have? Secondly, you will need to consider “outcomes” in those countries where you have the option to issue, otherwise known as “countries with jurisdiction”. Afterall, the outcomes and timetable and procedures of different countries can vary enormously.  Consider issues such as personal inconvenience, arrangements for your children, as well as potential financial outcomes. Will you face language and culturally barriers? Will you be able to enforce an order in other countries?

Most countries decide on the basis of which country has the closest connection with the family concerned.  They will therefore take account of many different factors. The English Court has discretion in accepting or rejecting jurisdiction on the basis that England or another country has a closer connection.

What about Europe?

Prior to 31 December 2020 – if two EU countries had jurisdiction, for example UK and Germany, it depended only on where the proceedings were lodged first in time.  That country’s court would then normally deal with all matters concerning the family including divorce, children and financial proceedings.

Since that date, (when the UK left the EU) it is usual course for the court in England and Wales to use their discretion, to apply the “closeness of connection” rule. It can be important to determine where for example the parties last lived together as a family.

Before 31 December 2020, in certain circumstances it was compulsory for the court to transfer maintenance claims where another country had jurisdiction for maintenance, or the couple involved had decided previously that the other country should deal with this issue.  Now, however, prior agreement does not prevent the English courts from dealing with maintenance orders, but it might affect the Court’s approach to quantum and term such maintenance is payable.

Some countries do not apply domestic law, but the law of the country with which the couple have the closest connection. Otherwise, known as “choice of law” (or applicable law).  However, England and Wales, only ever apply English law.

Generally, English law is viewed as a very generous country for applicant wives, who can obtain on occasion very substantial orders. Hence, London has long since been described as the “divorce capital of the World”.

Be Aware: Other implications may result from admissions of residency or domicile

Each has tax implications under English tax law including liabilities for income tax, capital gains tax and inheritance tax.

There can also be nationality implications under the laws of other countries. So, specialist tax and immigration law advice may well be essential in addition to specialist family law advice.

Why is it important for my foreign divorce to be recognised?

It can impact a number of issues, such as your ability to remarry, children’s status, and legitimacy, nationality, tax status, succession and divorce claims. If the divorce obtained abroad is not recognised here, a person may well be considered to still be married here and can seek to divorce and make financial claims in this jurisdiction.

Divorces obtained in another EU country before 1 January 2021 were automatically entitled to be recognised in England and Wales.  After that date, they may still be recognised under the 1970 Hague Divorce Recognition Convention which includes about half of the EU members. If this is not applicable, things can become more complex.

What about your children?

If your relationship breaks down, and you want to leave the jurisdiction of England and Wales, can you relocate permanently to another country? In short, no you cannot.  You must obtain the permission of the other parent or indeed anyone else with custody rights before you take a child permanently abroad.  If not, you will probably find yourself involved in child abduction proceedings.  If the other parent does not agree, then you must seek the permission of the Family Court.

What about if you have an agreement which specifies, that if there are any family proceedings, they should be in a specific country?

It is not unusual with international families to include what is known as a “jurisdictional clause” in a marital agreement. In such circumstances, the court in England and Wales will give considerable weight to such a clause. However, such an agreement as to where the divorce takes place would be irrelevant in the EU. All that matters is who is first in time to issue.

Hence, it is not always necessary to attend a compulsory mediation information meeting (MIAMs) before issuing English family proceedings, if one of you lives abroad, as exceptions exist.

In summing up this article it is always essential to secure expert legal advice when involved relationship breakdown, with international complexity.