The FCA – Transformation to Assertive Supervision
Our clients frequently come to us with the understanding that where they marry is relevant to where they will get divorced. They assume there is a connection to that place and that there is no choice therefore as to where they might get divorced. These assumptions are wrong and an already complex picture is even more confusing for international couples when it comes to pre-nuptial agreements.
In reality, there is no connection at all between the place of marriage and where a couple might divorce. What matters is that a spouse on separation has a sufficient connecting factor to the country they seek to divorce in under the laws of that country and at the time they wish to bring those proceedings.
Increasingly we find that couples might have moved many times since their first country of residence after marriage. Also, their country of residence at the time of marriage may be different to the country in which they got married and had the wedding. Many of my clients get married in a continental European country, only to resume residence in London immediately after the wedding.
Choosing where to divorce and the race to court
It is often possible under various EU and national rules to choose your property regime on divorce (i.e. the law and rules under which property and assets will be divided), the law under which maintenance will be decided between spouses and the divorce procedure law that will apply.
Despite these freedoms, the rules on where you get divorced are much stricter. You cannot choose in advance where that happens. This will be determined by strict EU criteria based primarily on your place of residence at the time of divorce, but also with the option for a divorce in the country of common nationality, or of common domicile in the case of the UK and Ireland.
This presents the opportunity for something called “forum shopping”, which is a race to file for divorce first in the most advantageous jurisdiction to the weaker or stronger party financially. So, the spouses apply strategic choices to where they seek to divorce and the first to issue aim to secure their preferred jurisdiction to the exclusion of any other EU choice and even make it harder to bring a divorce in a non-EU state.
Pre-nuptial agreements sometimes try to restrict the parties to a choice of country for divorce. However, you cannot choose a jurisdiction in advance which may later be ineligible, so this area is fraught with difficulty.
While pre-nuptial agreements are increasingly being upheld before English courts, there are catches. You cannot necessarily carry the pre-nuptial agreement with you if it was prepared in the country where you married but which differs from the law of the one in which you are planning to divorce. English case law has difficulties recognising and upholding foreign agreements. The situation may change following recent guidance from the Law Commission and calls for law reform in this area.
So, international divorces can be complex, restrictive, full of traps and a long way from being a question just of where you got married in the first place.
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