Divorce advice for ex pats (3)

Sometimes a couple can obtain a divorce in more than one country. In that case one such country may be more favourable to one party than the other and so the question of where the divorce takes place can be a significant issue.

Obviously, for a couple who were married in the UK and who have lived all their lives here this sort of question does not usually arise. However, it is increasingly common for people from different countries and backgrounds to marry and also for British people to spend much of their working lives in other countries. Either of these situations and others can lead to a choice of jurisdiction for divorce.

One common situation that arises, for example, is the case of a dispute over child custody where one or both parents originate from muslim countries. It often comes as a shock to a muslim father to discover that in the UK it is normally the mother who has custody of children. In many muslim countries that is not the case and so if the divorce could take place in such a country instead of the UK it would have a very marked effect on the outcome so far as the custody or residence of children was concerned.

Similarly, the UK did not traditionally recognise pre-nuptial agreements (although that may be changing) whereas various other countries do. Obviously it might suit one spouse to have the case heard in a country which does recognise pre-nuptial agreements where one had been drawn up.

It is therefore of more than academic interest when there is a real choice of jurisdiction. The different approaches in those different jurisdictions might have a very real effect on the outcome. Say, for instance, a married American couple have been living in the UK for over a year and the husband issues a divorce petition here. He is entitled to to that because he has been resident here for at least one year immediately preceding the filing of the divorce petition and it does not matter that they are both American and may have been married in the United States or anywhere outside the UK.

The wife then returns to the US before divorce proceedings have been concluded here. She in turn issues a divorce petition in the US. She is almost certainly entitled to do that on the basis of her American domicile although, of course, that sort of question will depend on the local law of the jurisdiction. There are now two divorce petitions legitimately issued and the English courts have to decide which of them should proceed.

There are in fact rules about how cases such as this should be decided. If the wife in the above example wanted the proceedings to be heard and determined in the US (because, for instance, she wanted a pre-nuptial agreement enforced) then she would have to apply to the English divorce court to have the husband’s divorce petition “stayed”. If she were successful in such an application then the husband would be prevented from proceeding with the divorce in England and the US courts would deal with the divorce.

The English courts decide questions such as these on a test which is best described as the “balance of convenience”. In this example, one of the factors that would obviously weigh with the court would be that both parties were American. It might be rather different if one spouse were English and the other American as might easily be the case.

The court would also be influenced by how long the couple had lived in England, where the bulk of their property was, whether there were any children and, if so, where they were. All of these factors and others would come into play. After weighing them up the court would then decide whether it was better for the divorce to proceed in England or the US. These are the sort of factors that are taken into account when there is a conflict of jurisdiction. There is no formula for the answer. Each case depends on its own facts.

However, where this sort of situation arises and there is the possibility of a divorce taking place in more than one country it is worth considering which jurisdiction is more favourable. Sometimes this can be of benefit to both spouses. In the Philippines, for example, no divorce is permitted because it is a staunchly Catholic country. Therefore an English man married to a Filipino lady and living in the Philippines would not be able to get a divorce there. However, either of them might be able to get a divorce in England provided the English husband has still retained his English domicile (as it often the case). If the marriage has broken down beyond repair this solution might suit both spouses and it offers a solution where otherwise there would not be one.

There are often substantial differences between divorce laws in different countries. Where one has a choice of jurisdiction it is sensible to weigh up the pros and cons of each before issuing a petition. Usually it is the spouse who gets the punch in first who wins the jurisdiction issue.

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