In a global society, more and more relationships are spanning across multiple countries. This can make the often-daunting prospect of divorce and co-parenting seem even more challenging. At Tees we’ve helped many couples untangle the complexities arising from international divorce and co-parenting across international borders. If you find yourself in this situation, consult a specialist to guide and advise you how to take advantage of your situation. Choosing the best country to get divorced in for you, is a highly skilled process and you should consult international divorce law experts to make sure you don’t lose out.
Divorce, jurisdiction and financial proceedings
Here we answer a range of questions regarding getting divorced across international boundaries, in different jurisdictions and the related financial proceedings.
Can I get divorced in England or Wales?
In order to divorce in England or Wales, one of the following tests needs to be met:
- you are both habitually resident i.e. England or Wales is your primary country of residence
- you both were habitually resident at some point during the marriage, and one of you still resides in England or Wales
- the respondent is habitually resident
- the applicant lived in England or Wales for at least one year immediately before the application was made
- you are both domiciled in England or Wales (domicile tends to refer to the place where you were born, or where you live and intend to live permanently and indefinitely)
- the applicant lived in England or Wales for at least 6 months immediately before application and is domiciled in England or Wales.
Does it matter if we married abroad?
This does not matter if you meet one of the tests above on jurisdiction, but if your marriage certificate is in another language you will need a formal translation to go with your divorce petition.
Is there an advantage to starting a divorce in a particular country?
Different jurisdictions approach financial needs, income, pensions, tax, pre-nuptial agreements and matrimonial property in different ways, so it’s important you seek specialist advice on your options. Different legal treatment of these considerations will affect your financial settlement and choosing the right jurisdiction will place you in an advantageous position.
Here’s an example based on choosing to get divorced in England and Wales, as opposed to Scotland.
If you were to divorce in England, the English courts will take the period of pre-marriage cohabitation into account in determining the length of the marriage. On the other hand, if you were to divorce in Scotland, the date of marriage itself is considered the start of the marriage.
Here’s how this could make a difference: imagine your ex-partner received a large inheritance during the period of pre-marriage cohabitation. The English courts would consider this to be a matrimonial asset and so, without any other evidence to the contrary, the inheritance would form a potential part of any divorce settlement. Therefore, it would clearly be in your interests to divorce in England, but for your ex-partner it would be in their interests to divorce in Scotland, were that possible under the rules of jurisdiction.
Does my ex-partner need to agree which country we divorce in?
No. There is what is known as the ‘first to issue’ procedure, whereby the jurisdiction where the divorce petition was first issued will have exclusive jurisdiction.
If you are the party who first issues proceedings, this can only be to your advantage. Depending on your circumstances, you may be able to choose between countries as to which will give you the greater advantage.
Therefore, it’s important that you act quickly in deciding which jurisdiction is most advantageous to you and then issuing in that jurisdiction. For many countries (especially in the EU), issuing a petition in a certain country will give that country exclusive jurisdiction.
Where costs allow, it’s best to contact a specialist family lawyer in the other competing country (jurisdiction) to provide an expert opinion as to which of the jurisdictions you are considering is most advantageous to you.
Do I have any right to my ex-partner’s assets abroad?
The answer to this question largely depends on the jurisdiction. In England and Wales, these assets, even though they are abroad, will form part of the matrimonial pot if acquired during the period of cohabitation and marriage. Then there is the question enforcing an English financial order abroad to deal with any foreign assets. The ease or otherwise of doing this varies depending upon the country you are seeking to enforce the order in. Consult specialist lawyers who will know about the situation in the country that is relevant to your situation.
How do I find out about my partner’s assets in another country?
If you think your partner is hiding assets abroad, the English courts have wide powers of disclosure that can, depending on the country, be mutually enforced abroad.
Can the divorce and the financial settlement be made in different countries?
A slight distinction has to be made between getting divorced in a particular country and starting the financial proceedings in a different country; they are two separate applications. However, in many jurisdictions the two are linked, so if you start the divorce in one country, then the financial proceedings must also be in the same country. However, in England and Wales even if the divorce was granted overseas you can deal with financial issues here.
Child Arrangements and maintenance
Here we answer some common questions relating to children and paying maintenance.
If I move overseas, can I bring my child with me?
For further information as to your rights on this matter and how we advise you go about moving to another country, see our article Relocating with a child when you are divorced or separated.
How does it impact child maintenance if one parent lives abroad?
There is nothing to prevent you coming to a voluntary arrangement with your co-parent about child maintenance.
If you have an existing Child Maintenance Service (CMS) calculation in place and the non-resident parent (the person not living with the child) moves abroad, you can enforce your child maintenance if the other country is a recognised country, known as a Reciprocal Enforcement of Maintenance Orders (REMO) country. If the country is not REMO recognised, then it depends on the specific laws of that country.
If the non-resident parent lives in the UK, and you and your child have moved abroad, you can enforce an existing CMS decision in the usual way.
How do I start receiving child maintenance if my co-parent lives abroad?
You cannot use the CMS for a new application for child maintenance (unless your co-parent falls into limited exceptions, for example, they work for the armed forces).
You would need to make a Court application for child maintenance which may often need to be made in the country where the co-parent lives.
Could Brexit impact international divorce and co-parenting?
At present, it is not clear what if any impact Brexit will have on current procedures for issuing divorce proceedings in the EU. Currently, the ‘first to issue’ procedure continues to apply, which means the jurisdiction where the petition was first issued will have exclusive jurisdiction.