'An international divorce' - what couples need to consider

It is now very common for there to be international aspects to consider when couples are getting divorced.

For example, one spouse may be based abroad, a marriage may have taken place abroad, one or both spouses may be nationals of other countries, or the couple may have relocated to another country. In some circumstances a divorce may already have taken place overseas.

We are often asked about the possibility of getting an ‘international divorce’. However, there is no process whereby a divorce is simply dealt with as an international divorce. It is necessary for a divorce to take place in a specific country. This is the case regardless of whether the couple are in or out of the European Union. The question to ask is therefore which country is the appropriate country to get divorced in? This will not always be straightforward for couples who have international elements to their life.  

An international couple

For those who are considering the concept of ‘international divorce’, it will primarily be because the couple have some kind of connection to another country. In those circumstance they will need to decide where to divorce.

If divorce proceedings are started in England and Wales, it is possible for the court to decline to continue with the divorce if the other spouse starts divorce proceedings in another country. In assessing whether a divorce should continue here or elsewhere, the court will look at which country has the closest connection. In deciding this they will consider a number of factors, including: -

• Nationality/citizenship
• residence
• domicile (a complex legal concept related to your home country or where you have your permanent home. This can be different from nationality, citizenship or residence).
• where assets are located
• the location of the alternative court
• where children are attending school
• What language the couple speak
• The relevant cultural background

Marriage abroad

If you had your wedding ceremony abroad, this doesn’t mean that your divorce has to be dealt with in that country. In England and Wales, a marriage which took place abroad will be recognised here, and can be the subject of a divorce here, provided the marriage complied with the laws of the relevant country and is therefore valid.

What is an overseas divorce?

From the perspective of the court in England and Wales, an overseas divorce would be a divorce that takes place anywhere other than in England and Wales.

Most divorces will take place in one specific country, but they may have international elements e.g. assets overseas. Sometimes a divorce might be issued in more than one country and there might be a dispute, often called a jurisdiction dispute to determine which is the most appropriate country for the divorce to take place.

What orders can the court make on an overseas divorce?

The type of financial settlement available following an overseas divorce will depend upon which country the divorce took place in. If divorce proceedings are issued in the United States of America, the law in the relevant state in America would determine what the financial settlement would be.

Financial claims after an overseas divorce

In certain circumstances it is possible to bring a financial claim in the courts of England and Wales following an overseas divorce. These are known as Part III claims, as the legislation that deals with financial claims after a foreign divorce is Part III of the Matrimonial and Family Proceedings Act 1984.

This provision allows you to pursue financial claims where the financial provision given to you in the foreign divorce was inadequate and/or fails to meet needs. To bring a claim the following criteria must be met:-

• The foreign divorce must have been legally valid in that country
• You must not have remarried
• You must have ‘sufficient connection’ with England – a lawyer can advise on whether you have sufficient connection with England or Wales or not

What orders can a court make in a Part III claim after an overseas divorce?

The courts have the ability to order that there be the transfer or sale of property, lump sum payments, pension sharing and/or maintenance payments made.

What do you need to show to succeed with a claim?

In the event that the connection to England and Wales is strong, the court may take the view that it is appropriate to ensure that the financial provision is similar to that which would have been awarded if the divorce had been dealt with in this jurisdiction, rather than overseas. If the connection is weaker, they may simply ‘top-up’ what has been given already.

It is necessary to succeed in a Part III claim to demonstrate to the court that you have done your best to seek reasonable financial provision in the foreign country where the divorce took place and use local remedies. A Part III claim cannot simply be used as an appeal or second bite of the cherry because you were simply unhappy with the award in the foreign divorce.

For specialist international family law advice please speak to a member of the Brabners’ Family Law Team.