International aspects of divorce
Many people contact us from abroad or have connections with other countries. Sometimes more than one country may be able to have the divorce or other family proceedings take place there. Sometimes this is to enforce orders, perhaps financial or regarding children, in another country. Often it is at the beginning, perhaps before or at the time of the separation. One of the most fundamental aspects is in deciding in which country any family law proceedings should take place. It is not automatically better either in England or in one's home country. This invariably requires urgent action and quick decisions.
Just because one was married abroad does not mean that the divorce has to take place abroad. Equally, although married in England, it may be advantageous to be divorced in another country with which there is a connection.
Selecting an advisor
You should seek independent legal advice. We can usually provide suggestions for you to consider and a relevant person to consult. International issues, however, can be very complex, requiring very different action and timetables from purely domestic family law cases. The law is very different. The Law Society recognises that cases with an international element invariably require a specialist and experienced lawyer.
Speed is very important
Do not delay in seeking independent legal advice as speed is very important.
It is fundamental with cases involving another European country. This is because the country which first receives family law proceedings deals with them even though another country might have a closer connection. This law is known as Brussels II. The financial outcomes across Europe on divorce can differ dramatically, even in average, semi-detached and PAYE families. Issuing first, even by a matter of minutes, may make a difference of many thousands of pounds.
Accordingly, where another European country is involved, seek immediate specialist advice, and before negotiating direct, engaging in mediation or perhaps even discussing the possibility of proceedings with your spouse.
Although this priority on being first to issue is not so fundamental with some countries outside of Europe, it may still be advantageous so again take advice quickly.
Financial provision on divorce
This can vary greatly between countries and states. It is therefore crucial at the outset to consider which is the most favourable country for the proceedings to take place. You should take urgent legal advice, especially if you think your spouse may move assets and get them out of your reach or that of the family Court.
This is the term used when spouses and their lawyers decided which country is the best in which proceedings should be commenced. Often, where there are two or more countries which could deal with matters regarding a family, one may be advantageous to one spouse and the other advantageous to the other spouse. Proceedings are then commenced by each spouse in each country and the courts have to decide which is the more appropriate country to deal with the case.
Between the courts in the various countries in the United Kingdom, referred to below, there is a hierarchy of criteria to be applied.
Between the member states of the European Union, it is simply on the basis of which country received the proceedings first.
Between England and many other countries outside the European Union, it is decided on a number of discretionary factors, primarily looking at which country has the closest connection with the family. These forum disputes can be very costly, with lawyers in two countries involved, very public, very lengthy and very acrimonious.
Crucially, before deciding to embark on a forum dispute, it is very important to balance speed and tactical, financial advantages against wider impact on you, your family and the rest of case. Whilst important to consider forum issues, a financial order is not the only criteria. There must also be considered the extra delay and significantly increased costs of forum litigation. They are invariably emotional and distressing to the family members, with intense feelings aroused.
Forum disputes still bear all the worse hallmarks of aggressive and tactical litigation that good conciliatory practice in England and Wales has done so much to eradicate.
Some of the factors to take into account include:
Will my marriage or my divorce abroad be recognised here?
Foreign marriages are invariably recognised in England. The formalities of the marriage abroad must have been carried out according to the law of the country where it took place. Each party must have the capacity to marry according to their home country (place of domicile) before they got married. Civic authorities in England often require sight of the original marriage certificate or a copy certified by a lawyer, together with a certified translation if appropriate.
Divorces pronounced in United Kingdom are automatically recognised in each of the UK countries.
Divorces pronounced across the European Union are recognised save for the most exceptional of circumstances.
Divorces pronounced outside of the European Union depend on whether they were granted by means of proceedings or not by means of proceedings. If by means of proceedings, and the procedure was followed correctly according to the local law, then it is very likely that the foreign divorce will be recognised.
A greater difficulty often arises where the divorce was granted without the involvement of judicial proceedings. This is often in the case of religious divorces, such as Talaqs. These are recognised in many parts of the world and are sometimes recognised in England. However as they do not always require the giving of advance notice to the wife, England takes great care before recognising them. Specialist advice should be taken.
A divorce has to be completed and ended in one country. Accordingly, a Talaq or a Jewish Get commenced in one country, such as England, and ended, perhaps with a registration process, in another country will not be recognised. It is known as transnational divorces.
In a number of circumstances, England will recognise polygamous marriages.
Working with lawyers abroad
Bearing in mind the importance of speed and deciding which country is better for you and how to take steps on your behalf in the other country, the information regarding the foreign jurisdictions must be quickly and easily accessible for you and your English lawyer. Also co-ordination of action/advice in separate jurisdictions between lawyers is essential. Advice will be needed in the other relevant jurisdictions from specialist family lawyers on at least:
International aspects regarding children.
The courts of many countries take very seriously any attempts to take a child abroad without the consent of the other parent.
If in doubt, you should obtain consent to the travel plans. This includes holidays. If certain English court orders are made regarding children, it is compulsory to obtain consent. Your lawyer will explain this.
Taking children abroad without consent is known as child abduction. Taking the children abroad for a holiday with the consent of the other parent and then not returning them is a child abduction.
Child abduction is a criminal offence. It can carry a prison sentence.
Many countries across the world have signed the Hague convention on child abduction. Countries cooperate with each other for the return of children. The parent whose child has been abducted is invariably entitled to free legal representation in the other country for the child's return.
This is a very specialised area, even within the context of international family law.
Reunite is the leading UK charity specialising in international parental child abduction. It provides advice, information and support to parents, family members and guardians who have had a child abducted or who fear child abduction. They also provide advice to parents who may have abducted their child as well as advising on international contact issues. Please kindly mention Divorce Aid to them.
For further details, please see their website at www.reunite.org or call their advice line on 0116 2556 234. From abroad, call +44 116 2556 234
Write to them at:
P.O. Box 7124
If a parent who is the primary carer wants to move to live in another country and take a child, it is necessary to make an application for a relocation order. The courts are generally sympathetic to such applications but consider carefully the best wishes of the child and the impact on the parent left behind. Good proposals for contact have to be made, sometimes including financial proposals regarding the additional cost of contact, before permission to relocate with the child will be given.
Are the family law proceedings in England and Wales, the United Kingdom, the British Isles or what?
Let us try to explain the various legal jurisdictions here at home
The British Isles refers to the group of islands off North west Europe, including the islands of Great Britain (the countries of England, Scotland and Wales), Ireland (Northern Ireland (NI) and the Republic of Ireland (ROI, also known as Eire)), the Channel Islands (the islands of Jersey, Guernsey, Herm, Sark, Alderney, just off the Cherbourg peninsular of north France), the Isle of Man (in the Irish Sea), and other small bits of rock off shore. It is a geographical term. In the Republic of Ireland, however, some would not accept either the term, the 'British Isles,' or that it includes their country.
United Kingdom is the British Isles without Eire, the southern part of Ireland, which is a totally separate sovereign state. In some contexts, it excludes the Channel Islands and the Isle of Man, as they are also separate sovereign states. It is a political term and in some respects, more international than domestic law, a legal term.
Great Britain is the big island, being England, Scotland and Wales. It does not include Northern Ireland. It is a geographical term but is often confused with reference to Britain (arguably the same as Great Britain) or British (which is sometimes based on the UK area i.e. including NI). Moreover, England was often referred to as Britain but recent years have seen not only the Scots and Irish resent this but also the English have reasserted their separateness and identity from the rest of the UK.
England, Scotland, Wales and Northern Ireland, as well as the Channel Islands and the Isle of Man, must always be treated as separate legal entities. The House of Lords is the final appeal court of all UK countries. In ROI it is the Supreme Court, headed by the Chief Justice. In exceptional cases, the European Court of Justice may become involved on the interpretation of European Union law.
In all instances, Wales is included with England. Apart from this the countries of the UK are separate family law jurisdictions. So a case cannot be transferred generally to the UK. Each develops their own family law themselves and they have separate court structures save for the House of Lord being the highest internal court. They have separate legal professions. Apart from rights of audience via the EU, lawyers in one country have no automatic rights in other UK courts. It is not possible to refer to the UK having jurisdiction in a case or a case being transferred to the UK.
Scotland Family law in Scotland is more separate from other parts of the UK, being more based on French law than English. But there are similarities. Financial provision law and procedure and the grounds for divorce are very different from England. For example, Scotland has very restricted term maintenance orders, a quasi community of property regime, binding marriage agreements, no fault divorce etc; Children law, however, is more similar. Scotland employs very distinctive and unusual legal expressions. Until quite recently, only the Edinburgh courts had family law jurisdiction. It is now more widespread but despite its smaller size than Glasgow, Edinburgh tends to deal with many family law cases and especially those with an international background.
Northern Ireland family law, procedure and practice are quite similar to England, with some legislative or case law changes following a few years behind England.
The Channel Islands
The Channel Islands borrow extensively from England but it has some very distinctive French influences due to its geographical and demographic closeness. The two main islands, Jersey and Guernsey, have separate courts. The Channel Islands are significant banking and tax jurisdictions. The Islands more often feature internationally in injunction and/or enforcement proceedings rather than being the forum for the main proceedings.
The Isle of Man
The Isle of Man is close to England and Northern Ireland in law save there are some significant differences where banking laws intrude into family law.
The Republic Of Ireland
The Republic Of Ireland is strongly Catholic in its legal tradition and was one of the last countries to allow divorce back in 1997. Since its reforms in the mid 1990's, it is now considered as an advanced jurisdiction.
'With the highly deprecated "first to issue secures jurisdiction" and the lack of discretionary fairness on forum conveniens in Europe, new laws across Europe increase the pressure on lawyers to ascertain at a very early stage with clients what are the possible jurisdictions for a possible divorce and which is most beneficial for the client. Family members involved in a dispute with international aspects should always take urgent and specialist advice.' David Hodson. See his website at www.davidhodson.com
For information about Brussels II, see the full text of the Official Solicitor's guide at: www.officialsolicitor.gov.uk