Cross-border Divorce in the English Courts for Foreign Nationals
Divorce is never easy and many people stay in a marriage in the hope that it will work out often waiting until their late forties before taking the step.
It is well known that a new year proves to be the tipping point, especially with the more complex family units that are seen now. The whole situation can seem more complex when the parties come from different countries.
Divorce tourism, also known as forum shopping, is where one party attempts to obtain a more favourable result by choosing the best jurisdiction for their purposes. London is a popular choice for foreign nationals to divorce and around 24,000 choose to do so each year. Not for nothing is London called the divorce capital of the world as there is a bias towards the financially weaker party and maintenance can be awarded for life, as opposed to a finite number of years as in other jurisdictions. Also, maintenance is largely discretionary rather than a fixed formula seen in other jurisdictions.
If both parties in a divorce have the entitlement to divorce in different countries and two matters are planned in different countries by each spouse, the divorce will be heard in the country of the party whose proceedings start first, so it is important to make an early decision about how and where the divorce is to take place.
As with many issues surrounding divorce the question of where to divorce is a complex one as, whilst there may be broad similarities in the divorce law between each country there are also some things that can be more favourable to one spouse or the arrangements for children may vary quite significantly. Also it can be daunting to be involved in a legal matter in a country where your first language is not spoken which is why Giambrone has English, Spanish and Italian speaking lawyers and many of them are also multi-jurisdictional, so you do not have to deal with more than one lawyer and you can be spoken to in your own language.
The bilingual lawyers at Giambrone have considerable experience with cross-border divorce and can advise as to the best place to divorce to achieve a fair settlement.
Another advantage to the foreign spouse is that should your divorce have taken place abroad and the financial settlement was not entirely fair, perhaps due to cultural bias towards men or lack of funds to enable proper representation, Part III of the Matrimonial & Family Proceeding Act 1984 (MFPA 1984) provides an opportunity, as long as all the necessary provisions are met by the applicant, to vary the financial arrangements to make a fairer settlement.
The criteria to be fulfilled before such an application can be made are:
- At the time of the foreign decree, at least one of the parties to the marriage must have been domiciled in England and Wales, or,
- at least one of the parties was habitually resident in England and Wales for one year preceding the application or decree, or,
- at least one of the parties is entitled to a beneficial interest in a property in England and Wales that was once the matrimonial home (in which case the court is confined to dealing with the property in question).
The application is made in two stages, known as the filter mechanism, in the first place an application is made for leave under s.13 and R3.17 FPR. The court must consider two things once permission has been granted:
First, whether it is appropriate for a UK court to make the order the applicant is seeking.
If the answer is “yes” the court goes on to consider all of the circumstances of the case, including all the relevant factors that the court would normally consider at the start of financial relief proceedings.Including the financial resources of the parties, the standard of living they enjoyed during the marriage and their competing financial needs. The English court has the power to ‘revisit’ the case and is given recourse to the full range of remedies the court usually has available to it.
The ability to vary financial arrangements following a divorce now extends to Scotland since the EU Maintenance Regulation, was introduced in 2011.
For more information about all aspects of cross-divorce, family law and financial settlements related to divorce please email firstname.lastname@example.org with your full contact details and an outline of your requirements.