Not all divorce is equal – as any high net worth divorce lawyer will tell you, particularly if you are dealing with an international divorce. With different rules applying in different jurisdictions, some couples will disagree over where they should end their marriage. Of course, it is not as simple as choosing any jurisdiction that suits. Most London top divorce lawyers should be able to explain how the rules on ‘forum shopping’ will apply to your divorce, and how to achieve the best outcome. In this blog, our London divorce lawyers look at the rules on jurisdiction in divorce.
Where can I get divorced?
There is often an international element in any marriage – many people choose to get married abroad, relationships frequently have an international element as individuals travel more. For many couples married and residing in one country throughout the relationship, the question of where to divorce is straightforward but a look at the cases handled by many of the best divorce lawyers in London will show that an increasing number of divorces have an international element – and that means deciding where a couple can get divorced.
When you’re getting divorced, you can’t simply choose the divorce jurisdiction that has the most favourable rules for your needs. This is limited by the fact that each divorce jurisdiction will have rules about whether it can hear your divorce. In England and Wales, for example, there needs to be a connection to the country - a period of residency by one or both of the couple is the most usual way to establish this, but domicile can also be considered even if neither party is resident here.
If there is a question mark over jurisdiction, it is always worth taking advice from the best divorce solicitor you can find in each country (or, where appropriate in the relevant state if there is a federal system in play) to understand the benefits and disadvantages of each jurisdiction where the divorce could take place.
The English Courts considered this question in the case of Mantegazza v Mantegazza. The wife was born in England but at the time was living with her Swiss children in Switzerland. Her Swiss husband lived in Monaco but had spent significant periods of time working in London. The family had previously lived in London between 1995 and 2006, although the couple married in Switzerland. When it came to divorce, the wife issued divorce proceedings in London on the basis that she was domiciled in England.
The English court decided that Switzerland was the most appropriate forum for the divorce, not England even though the wife had issued proceedings in England before her husband had issued proceedings in Switzerland. There was a pre-nuptial agreement in place which included an agreement “to subject to Swiss law all their internal and external patrimonial relations, regardless of their future domicile”. The parties had been married in Switzerland and that was where the marital home was and where the wife and children were living. The court took account of the fact that the family had no significant assets in England, but substantial assets in Switzerland, and to the fact that the English Courts had no jurisdiction to deal with maintenance. Finally, any order made relating to matrimonial property rights in England would not be enforceable in Switzerland.
How do I ensure where my divorce happens?
Having chosen the best forum for your divorce, it’s vital to take swift action to ensure that this is where the divorce actually takes place. When competing jurisdictions are in play, it can be a question of ‘getting in first’ with the divorce petition to establish jurisdiction. It’s worth noting that within the EU, the rules of the so-called ‘Brussels IIa’ regulation (Regulation 2203/2001) apply. Where there are competing divorce jurisdictions within the EU, the court of the first member state to deal with the matter has jurisdiction.
In the recent case of Thum v Thum, an issue arose over whether the English or German Courts had jurisdiction over the divorce. The couple married in Germany in 2001 and moved to London in 2009. When the marriage broke down in 2015, the wife issued proceedings in London in October that year, but took no steps to serve the divorce petition until the following January. At some point in the intervening time, the husband had moved back to Germany. On 19th January, Mrs Thum’s solicitors sent the petition to the Foreign Process Section of the High Court, but it turned out that the wife had not provided sufficient details of the husband’s address, so service was not effected until 27th February 2016. In the meantime, Mr Thum had filed for divorce in Germany on 20th January 2016, and those proceedings were served on Mrs Thum on 3rd March 2016.
In considering where the divorce should be finalised, the court had to consider which country ‘first had possession of the matter’. This happens
“…at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the applicant has not subsequently failed to take the steps he was required to take to have service effected on the respondent.”
The English court decided that as there was no time period within which a divorce petition had to be served, the wife had not “…subsequently failed to take steps…” to serve the petition on her husband. As a result, the English Courts did have jurisdiction, and the husband’s application to have the English divorce proceedings dismissed failed.
Advice on high net worth divorces
Although not all international divorces will be high net worth, many involve significant assets. Given the importance of choosing the correct jurisdiction, it’s vital that anyone finding themselves in this situation should seek advice from the best divorce lawyers available.
OTS Solicitors are divorce lawyers with experience in all aspects of divorce. Our divorce lawyers are members of Resolution and we advocate a non-confrontational approach to divorce where possible. To book an appointment to discuss your situation, please call us, in confidence, on 0203 959 9123.
Posted on: Thursday, 20 September, 2018