Jurisdiction for Divorce
Following the outcome of the Brexit referendum, this blog post sets out the impact it may have on family law.
How do you get an EU-Certificate for divorce? See this blog post.
One important question in international family law cases is which courts have the power to deal with a divorce because different courts can decide quite differently.
The rules are similar for civil partnership dissolutions for same-sex couples, but do not apply throughout the EU. The provisions for divorce of same-sex married couples are a bit bizarre: European law does not distinguish between same-sex and opposite-sex marriage and treats every marriage the same, whatever the gender of the parties, but the UK parliament has legislated parallel provisions (although saying essentially the same thing) for same-sex divorce.
To be able to start a divorce in a particular country, the couple has to have a connection with that country. The rules for whether a court in the EU (except Denmark) has jurisdiction for divorce are almost uniform throughout. The only difference is that for the UK jurisdictions and Ireland “domicile” instead of nationality is the deciding factor in the category where this is relevant.
Someone can start a divorce in an EU member state (except Denmark, or part of the UK) if any one of the following applies:
- both are habitually resident there; or
- both were habitually resident there and one of them still lives there; or
- the respondent (not the person who starts the divorce) is habitually resident there; or
- in countries where one can make a joint application either spouse is habitually resident there; this does not apply in England and Wales; or
- the person who starts the divorce is habitually resident there and has lived there for at least one year immediately before starting the divorce application; or
- the person who starts the divorce is a national of that country (or for the UK and Ireland “domiciled” there) and is habitually resident there and has lived there for at least six months immediately before starting the divorce application; or
- both spouses are a national of that country (or for the UK and Ireland have their “domicile” there).
Only if neither spouse could start a divorce anywhere in the EU (except Denmark), can the applicant fall back on any other rules that a member state may have. In England and Wales one could then start a divorce based on the domicile of one of the spouses. However, this does not apply if the respondent is a national/domiciled or habitually resident in any EU country.
In many cases it is possible that each spouse could start a divorce in more than one country. However, in some countries a divorce can only be started after a minimum period of separation. Since no minimum separation period is required in England and Wales, in most cases, it is possible to start a divorce in England and Wales earlier than elsewhere.
A second rule of the EU law is that the divorce that is first started will prevail and a divorce started later in another country has to be rejected. Of course if the first divorce fails for reasons of substantive law (e.g. the minimum period of separation has not been met; the behaviour of the respondent cannot be proved or as the case may be) and the court rejects it, either party can then start a new divorce, perhaps also in the other country, depending on the constellation at that time.
Because financial matters are in most countries dealt with as part of or ancillary to the divorce and the outcomes can be quite different depending on which court deals with it, it is important to consider carefully and quickly which court is best for you and whether you should start a divorce immediately to prevent your spouse from starting one in another country first. Sometimes this is pejoratively called “forum shopping”. However, it is simply sensible consideration of what is best in all the circumstances. If you do not do this with your lawyer, your spouse may do it with theirs!
While some countries have rules that govern which law to use for the divorce and financial aspects, English courts always use English law and disregard any provision in a pre-nuptial agreement about which law to use. Even if the courts in the other possible country also used English law, the chances are that the foreign judge would apply English law quite differently because financial aspects are decided on the judge’s discretion.
Even in international cases it is possible to come to an overall agreement through mediation. Sometimes it may be necessary to start court proceedings in one country first so that the other party cannot do that in another country. However, litigation in international cases can be costly, in particular if there are legal proceedings in more than one country. Mediation can cut through this and you can start mediation at any time in the proceedings.
For advice on your specific circumstances please contact a solicitor
5 May 2016 by Andrea Woelke