In divorce cases where there is an international element present, there are several considerations which should be taken into account when choosing the jurisdiction in which to apply. This article details the new developments in legislation post-Brexit.
Some legal and procedural considerations include:
- How are financial matters arising out of the divorce dealt with?
- How is child maintenance dealt with?
- Will the divorce be recognised in other jurisdictions?
- Will any financial orders obtained be enforceable in the jurisdiction where the parties’ assets are located?
- What means of enforcement exist in the jurisdiction and are these easily accessible?
The ability to issue divorce proceedings in England and Wales is determined by the parties’ connection to this country in terms of domicile and habitual residence. The legislation that deals with this is now the Domicile and Matrimonial Proceedings Act 1973.
The courts of England and Wales will only have jurisdiction to take on divorce proceedings if one or more of the below criteria are met:
- Both parties to the marriage are habitually resident in England and Wales
- Both parties to the marriage were last habitually resident in England and Wales and one party still resides there
- The respondent is habitually resident in England and Wales
- The applicant is habitually resident in England and Wales and has resided there for at least 1 year immediately before the application was made
- The applicant is domiciled and habitually resident in England and Wales and has resided there for at least 6 months immediately before the application was made
- Both parties to the marriage are domiciled in England and Wales
- Either of the parties to the marriage is domiciled in England and Wales
This applies to any divorce proceedings issued after the end of the Transition Period (11 pm on 31 December 2020). The previous legislation, namely Brussels IIa as well as the Maintenance Regulation, still applies in cases where proceedings were commenced prior to 31 December 2020.
The new regulations replace the previous rules whereby the courts in England and Wales were required to stop any divorce proceedings issued if the Court of an EU Member State had already started considering the case. This operated on a reciprocal basis which led to the issue of ‘jurisdiction races’, where both parties would have attempted to gain jurisdiction in their preferred country first by filing for divorce quickly before the other party was able to file in another jurisdiction.
The courts’ power to halt proceedings if they have already been issued elsewhere is now discretionary, as was the case in relation to non-EU Member State countries previously. This means that in the event that a divorce is filed for both in England and Wales and in another country, the Court in England and Wales has discretion to stop the proceedings here if it considers that it is more appropriate for the case to be dealt with in the other jurisdiction. Therefore, it may still be determined that the other court is the appropriate court if there is a contested battle in Court over jurisdiction. The Court will consider principles such as fairness and convenience to come to a decision on an individual basis.
In cases where a divorce has already been pronounced overseas, the English courts may still have jurisdiction to entertain financial applications in certain circumstances.
Further information on applying for a divorce in England and Wales can be found on our website and in our previous blog post:
https://london-family-solicitor.co.uk/law-surrounding-divorce/