Managing the complexities of multi-jurisdictional divorces

Alex Carruthers HFC

Managing the complexities of multi-jurisdictional divorces

Divorces with an international dimension are increasingly common. Although greater complexities inevitably exist for wealthy couples who have residences in several countries, the decision about where to issue proceedings is more often dictated by circumstance. There can be very different outcomes across different jurisdictions, even when comparing EU member states, for example.

A lot can depend upon which party initially files for divorce, as well as where and when they do it. Sometimes, first mover advantage really matters: sprinting quickly out of the blocks in a divorce race means that hours, possibly even minutes and seconds can make a tangible difference to the outcome, most notably in high value cases.

Because contrasting rules may apply, multi-jurisdictional divorces can be particularly complex and it is generally advisable to appoint a central organiser to co-ordinate between the relevant jurisdictions.

As in so many other factors of life, Brexit creates further uncertainty: how the situation may evolve over the next twelve months remains unknown in terms of any potential impact on divorce proceedings. At present, every EU member state save Denmark is a signatory to the revised Brussels II Regulation which deals with conflict of law issues in family law, in particular those related to divorce.

There are several potential criteria. At least one must apply in order to begin proceedings in the UK or in an EU jurisdiction. These can be summarised as follows:

  • Spouses must currently be, or were last habitually resident in, that country – insofar as one of them still resides there;
  • The respondent is habitually resident in that country, or in a joint application, either spouse is habitually resident there;
  • The applicant is habitually resident in that country if he or she resided there for at least a year immediately before the application was made; or if one of them resided there for at least six months immediately before the application was made and is either a national of the relevant member state – or in the case of the UK and Ireland, has their domicile there.

In some circumstances, disputes emerge about whether a condition has been met, but provided that at least one of them is, a strict ‘first in time’ rule applies. This means that the divorce will proceed in the jurisdiction where the papers were filed first, which often requires the other party to seek urgent advice.

Reaching agreement on custody and access to children is invariably the most sensitive aspect of divorce. When one parent wants to relocate permanently to another country with their child/children, but the other parent disagrees, they must first apply to the court for permission – either for a temporary period or a permanent relocation. Doing this without the other parent’s consent, or an order of the court, constitutes child abduction and is therefore a criminal offence.

Custody and access disputes are often hard-fought and distressing for all the parties concerned. The parent who wants to move, most often to the country of their birth, naturally believes that they can create the best life for their children there. Meanwhile the other parent will feel just as deeply that the children’s relationship with them will be adversely affected if they do not have day-to-day involvement in their lives.

For the English courts, consideration of what is the children’s best interests remains paramount: determining the motivation of the parent who plans to move, in addition to their plans for housing, schooling, and what proposals they have for maintaining contact with the other parent.

A social worker, or comparable recognised independent official, will be appointed by the court to undertake interviews with both parents and their children, if they are old enough. Thereafter, they will provide a report which outlines whether the application should be allowed and recommends what arrangements should apply for the children to be able see the other parent. Considerable weight will usually be given to the report by the judge at the final hearing.

For individuals who divorce in another jurisdiction but are unhappy with the outcome, a second bite of the cherry may still apply: the Matrimonial and Family Proceedings Act 1984 (the Act) can enable them to have another go via the English courts. Where a marriage has been dissolved or annulled in another country, this can allow such parties to get more money. A significant number of applicants succeed through the English courts by taking advantage of this legislation, and as a result, often receive a significant additional award in their favour.

A second look at the financial settlement is possible under the Act, even if the parties were divorced in another jurisdiction. Although the right is not automatic, it can provide another opportunity if certain criteria are met. However, an application is needed seeking the court’s permission without the other side being there. Once this is granted, it is difficult to overturn, weighing the odds in favour of applicants.

Adding an international dimension to any divorce can further add to the level of difficulty for everyone involved. It is perhaps self-evident that sound advice from expert divorce lawyers with relevant experience can be beneficial in helping to surmount the challenges involved and to achieve a divorce that succeeds in delivering peace of mind and a good long-term financial settlement.

Read Alex‘s article in Wealth Briefing.