Divorce in England v Russia: what is the difference?

10 February 2022

In December 2021 a judge in London ordered Sheikh Mohammed bin Rashid al-Maktoum, the ruler of Dubai, to make a payment of £554 million to his former wife, Princess Haya. In July 2017 Tatiana Akhmedova was ordered a divorce payout of £453 million and following four years of litigation, the parties reached a settlement in July 2021. Boris Berezovsky and Sir Paul McCartney were also divorced in London. There is a reason why London is often called the “divorce capital of the world”... it has hosted some of the world’s messiest and most expensive divorces.

One of the main reasons for this reputation is that when deciding a case, an overarching principle that the English courts must consider is that of fairness. In achieving this, the courts do not discriminate between breadwinner and homemaker; contributions by each are just as valuable. Financially weaker spouses rush to instigate their divorce proceedings in England as this usually results in a larger settlement than other foreign countries with whom they have a connection. Judges in England have a wide discretion in determining financial  settlements, which is not the case in common law jurisdictions. In Russia family matters are governed by the statute, with the core principles being set by the Family Code. In England judges must apply the rules set out in our statutes but must also have regard to previous court decisions (precedents). In Russia, case law or precedents play no role in judicial decision-making.

Divorce

In Russia, the procedure for bringing a marriage to an end is governed by Russian law and there are two routes to obtain a divorce: an administrative route applies where both parties consent to divorce and have no minor children; or a judicial route, in contested divorce applications or if the parties have minor children.

Like in England, there is only one ground for divorce under Russian law; the irretrievable breakdown of a marriage. In England currently there are five ways to justify such breakdown: two-years’ separation with consent; adultery; unreasonable behaviour; five years’ separation and desertion. In England, however, a new, long-awaited, ‘no fault divorce’ process is due to come into force on 6 April 2022. This will permit couples to get divorced without one spouse having to blame the other. In Russia, no specific separation period is required and it will suffice for just one spouse to apply for a divorce. It is not necessary to allege fault against the other party to obtain a divorce in Russia.

Division of financial assets

When a couple gets divorced there will often be associated financial proceedings to decide how the parties’ assets should be split and whether any additional financial provision is required. In Russia, there are no specialised family law courts or even divisions of courts. All family matters at first instance fall within the jurisdiction of district courts which have general jurisdiction in all civil disputes. In England, however, family disputes are decided by specialised family courts or judges.

In the absence of a marital agreement (in England, these are called a pre- or postnuptial agreement), courts in Russia will apply the default spousal property regime, which states that each spouse is deemed to have equal entitlement to joint property, which will include salary, dividends, pensions and property acquired with income received by one or both parties during their marriage irrespective of whether the asset is held in the parties' joint or individual names. It will not, however, include property that was, for example, acquired by one of the parties before marriage or a property received as a gift or inheritance. It is worth noting that assets in the names of third parties, or belonging to companies or trusts, will also be excluded from division, despite the source of funds. This default property regime was applied in the recent case of Potanina which was heard in Russia (and was subsequently before the English courts as Potanina v Potanin [2021] EWCA Civ 702 as a separate application for provision following a foreign divorce).

Whilst England also applies many of the same principles (i.e. the starting point is that the matrimonial assets should be divided equally), the courts must also ensure that the parties’, and particularly any children’s, needs are met. To achieve this it may be necessary to order an unequal division of assets or ‘invade’ non-marital resources or inheritance. This can be beneficial for the financially weaker party and have a significant effect on the settlement they receive. In Russia this is simply not an option at present, however there are on-going discussions as to whether the Russian courts should have a wider discretion.

If you have a connection with a different jurisdiction, whether it is Russia or another country, you should first establish whether you can get divorced in those jurisdictions and, if so, what the financial outcome may be compared to England and Wales. This information should be obtained without delay so that you preserve the option to issue proceedings in a country that is most favourable to you.

FURTHER INFORMATION

If you have any questions about the issues raised in this blog, please contact a member of our family and divorce team.

 

ABOUT THE AUTHORS

Yuliya Osudina is an Associate in the Family Team. Yuliya advises on a wide range of issues arising out of family or relationship breakdown. Yuliya is multilingual and speaks Russian, Ukrainian and advanced French.

 

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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