The London Courts are still popular with Divorcing European Foreign Nationals
The London court is still a very favourable place for foreign nationals, who fit the criteria to divorce in England & Wales, to start divorce proceedings. There are significant advantages for foreign nationals to choose to divorce in this jurisdiction which can have a big impact on the financial outcome. Each year there are approximately 24,000 divorces involving a foreign national heard in the courts in England & Wales. The principal reason is that the divorce courts of England & Wales often provide a fairer division of the assets of the marriage and the weaker party, often the wife but not exclusively, is likely to obtain a larger and fairer share.
Brexit will change this dynamic for EU citizens. However with so many factors yet to be defined it is extremely difficult to predict how the separation from the EU will actually affect European cross-border divorces. The government has provided some guidance on their website should there be a no-deal Brexit. Whilst it is not entirely clear, it is likely that a cross-border divorce, after Brexit, will not be as easy or as speedy to navigate as it is now. Enforcement of orders of the court relating to any children of the marriage as well as financial orders may become more difficult.
At present time the law remains the same until the moment that the UK separates from the EU and any divorces cases that start prior to the UK leaving the EU will continue under the existing laws, which means the financial advantages and the collaborative arrangements regarding court order enforcement will remain throughout the duration of the divorce proceedings if you beat the Brexit deadline.
In the case of cross-border divorce, the jurisdiction in which the divorce takes place is defined by who files for divorce first. Wherever the jurisdiction the first party to implement the divorce proceedings is, is where the matter is dealt with. Therefore it is imperative, in order to gain the advantage of the existing favourable financial regime, to start divorce proceedings in England & Wales absolutely as soon as possible. There is certainty if your divorce is conducted under the present laws, the future remains an unknown quantity.
There are criteria that must be fulfilled in order for a foreign national to divorce in England & Wales:
- At least one of the parties involved must have been domiciled in England & Wales or,
- At least one of the parties involved was habitually resident in England and Wales for one year preceding the application or decree or,
- At least one of the parties involved must be entitled to a beneficial interest in a property in England and Wales that was once the matrimonial home. If this is the basis of the criteria for the divorce in England & Wales the court will be confined to dealing only with the property in question with regard to the financial considerations.
Once it has been established that the applicant is entitled to divorce in the jurisdiction of England & Wales an application for leave to divorce can be submitted and the second phase of the process can begin.
There is still time and opportunity before Brexit to initiate divorce proceedings in England & Wales under the existing regime and avoid the potential for a protracted convoluted process through a court in Europe after Brexit. However, it is extremely important to be represented by a good legal team that has both legal expertise and knowledge of both jurisdictions as well as both languages to achieve the best possible outcome.
If you would like to know more about the current process for cross-border divorce please click here