Cross-border Divorce - Guidance on which Jurisdiction
Taking the decision to divorce is clearly a life-changing decision. There are additional considerations when the divorcing couple are nationals of different countries and may be entitled to divorce in either country. There are many things that should be considered when choosing the jurisdiction in which to divorce as there are wide variations from country to country including the rules governing jurisdiction, financial settlements, length of time for both the marriage lasted and the length of time the couple are separated once the marriage has broken down, also the grounds for divorce and the time scale for divorce.
The courts in England and Wales hear well over 20,000 cases where a foreign national is involved. This may, in part, be due to the fact that the financial settlements in courts in England and Wales are based on the principle that both parties’ contribution to the marriage is equal, meaning that in cases where one spouse works and the other spouse is a homemaker, the homemaker’s non-financial contribution is considered to be equal to that of the breadwinner. In England and Wales, maintenance is largely discretionary rather than a fixed formula, which is seen in other jurisdictions.
All assets, including those already acquired by the two parties are generally considered to be assets of the marriage and the starting point for the division of assets is 50/50. However, there are a number of other factors that the court considers with regard to the financial settlement. Including the duration of the marriage, whether there are children under the age of majority to consider, also each party’s capacity to earn a living. In the case of a long marriage where the wife was a homemaker and had never held a job it would be highly unlikely that a person of mature years with no qualifications or work experience would be able to secure a job and the financial settlement would reflect this.
The lawyers in Giambrone’s family team are ideally placed to assist foreign nationals with their divorce. Giambrone has offices throughout Italy in Milan, Rome, Palermo, Naples and Sardinia; as well as offices in Spain, Portugal, Tunisia and Scotland. Our family lawyers advise that once it has been established that the parties fulfil the criteria enabling a divorce in England and Wales the spouse instigating the divorce will need to secure all the documentation required such as the marriage certificate and evidence to demonstrate residence in the UK.
As the question of jurisdiction is relevant in a divorce related to a couple from different countries if both parties decide to initiate divorce proceedings in different countries and cannot agree on the jurisdiction in which to proceed there are quite complex rules that the courts can apply to settle the matter. However, whoever has the earliest petition is often allowed to continue with the divorce in the jurisdiction of their choice, so acting swiftly can often be a considerable advantage.
Regardless of whether you are divorcing or being divorced a cross-border family lawyer brings the advantage a comprehensive knowledge of a variety of jurisdictions and also saves both time and costs.
If you would like to have more information about divorce both in England and Wales and in other jurisdictions please click here.