What to do when your spouse wants to divorce in a different country to you

                By Punam Denley of Blanchards Law

Sometimes family law proceedings can be taken in more than one country. Clients and some divorce lawyers are often at a loss to decide where they should divorce when they have a variety of links with different countries.  For example a husband may be born in one country, married in another but living with his wife and children in a third country.  His wife may be from yet another State, and having separated she may well have returned there. Clients seeking advice from properly qualified lawyers with international experience will often be pointed towards litigating their divorce and financial proceedings in a country which is most advantageous to them in terms of either limiting their spouse’s financial claims or maximising their own, depending on their requirements.

How do you know in which country to bring proceedings? 

The first thing to do is to seek appropriate advice from lawyers in the jurisdictions which you are considering taking proceedings. Nowadays, this evidence-gathering exercise can take a matter of a few hours. Different rules apply to different States, and it is essential that you inform yourself before rushing into an action which could end up being an expensive and irreversible mistake.

If we take England and France, for example, where wives generally do much worse in France with financial settlements than in England.  In France there are strict rules applicable to division of joint assets and maintenance is only ordered for a few years, whereas in England wives often obtain lifelong maintenance orders, and the starting point for division of assets is equality, no matter is whose name those assets are held.  In those circumstances, a husband looking to divorce would wish to ensure that his proceedings are issued first, and that they are issued in France.

Proceedings in the European Union

Continuing with our Anglo-French theme, in order for say a husband to issue proceedings in France first, he must be able to bring himself within the jurisdictional requirements of French law. Across the whole of the European Union, with a few exceptions to include Denmark and Switzerland, jurisdiction is now identical for the countries who are party to the Brussels II Convention (Council Regulation EC No. 1347/2000).

The jurisdiction requirements are set out in Article 3 of the Brussels II Convention and are as follows, and the Petitioner (person bringing the proceedings) need only satisfy one of them:

(a)    The spouses are both habitually resident in EU country X (say, France or England and Wales), or;

(b)   The spouses were last habitually resident in EU country X insofar as one of them still resides here; or

(c)    The Respondent (person receiving the proceedings) is habitually resident in EU country X, or;

(d)   If the Petitioner was habitually resident in EU country X and has resided here for at least a year immediately prior to the presentation of the petition, or;

(e)   The Petitioner is domiciled and habitually resident in EU country X in that he or she has resided here for at least six months immediately prior to the presentation of the petition.

(f)     The spouses are both domiciled in EU country X.

The domicile of only one party (normally, but not exclusively, where they were born) has no applicability where a European Union member state has jurisdiction.  However if the Petitioner’s only connection with France for example, is that he or she was born there, and no other EU member state has jurisdiction on the above grounds, then he or she will be able to issue on the grounds of their sole domicile, rather than the usual requirement for joint domicile.

‘Stays’ of proceedings within the EU.- The other significant point about EU member countries who are party to the Brussels II Convention, is that where proceedings have been started first in another EU member state, the second country must stay its own proceedings in favour of the first country. This known as a “Mandatory Stay”. A “Stay” of proceedings is where a court must not allow any further steps to be taken in that litigation in that member state. This is the case even if the second seised country (“seised” refers to proceedings being issued in that State’s court) would appear to be the most convenient or appropriate country for proceedings relating to the parties’ marriage.  This gives the second seised country no jurisdiction and puts the party who issues first in a position of great power.

Put simply, the second court has to stay their own proceedings pending resolution of the matter in the country first seised, and shall decline jurisdiction in favour of that court.  Therefore in terms of applying for a stay of proceedings by a husband in our example, where the wife has issued second in England, it would simply be a matter of the husband’s solicitors writing to the English court to say that proceedings were first issued in France and therefore the English court has no choice but to stay its own proceedings.

Can we help you? Please call us on 0845 658 6639 or email us at pd@blanchardslaw.co.uk

Proceedings outside the European Union

In a situation where you perhaps have divorce petitions in both London and for example New York, one party may apply for a “Discretionary Stay” in either jurisdiction.  In these circumstances, it may not matter so much which party issued first in which jurisdiction, except that it may put the party who issued second on the back foot to some extent.  In these situations, the stays are not mandatory and it really is a matter of the court deciding which is the most appropriate jurisdiction for the parties to litigate their divorce.  In these circumstances the court will look at the country with which the parties had the closest connection in terms of residence, assets, where they pay their taxes, or where they work and get paid.  This list is not exhaustive and there are a number of different aspects that the court will consider.

These proceedings can be extremely fraught and, with the parties litigating in two countries, which one takes precedence?  A husband may have been advised that New York is a more financially advantageous jurisdiction for him, and therefore may seek to stay the wife’s proceedings in London, which have been issued second.

Whilst those proceedings in England are taking their time, he continues to litigate in New York to “steal a march” on his wife.  What is to be done when this happens? An injunction must be obtained to prevent the husband trying to secure his divorce first.  His is known as a “Hemain injunction”. However the injunction is personal as against the litigant and cannot bind the foreign court.  Many foreign courts will take notice and observe an injunction that has been made in another jurisdiction in the interests of comity of Nations.

Ultimately though there are those who will take advantage of the situation and secure their divorce elsewhere, for example in Russia. However, in these circumstances, it may not be the end of the road for the wife, whose Russian husband has managed to obtain a divorce first. It is open to the wife to issue proceedings under Part III of the Matrimonial and Family Proceedings Act 1984 for the English court to deal with her financial settlement after a foreign divorce, as long as she can establish grounds for doing so.  I have written previously about this and please read that article here

Also, just because a divorce is proceeding in the country first seised, does not mean that a spouse cannot obtain maintenance in the country second seised.

In addition it is worth noting that the English court has power to expedite a decree absolute, even on the same day as decree nisi if the Judge is of the opinion that the other party is acting improperly and trying to pursue their proceedings to the end in the other jurisdiction.

Conclusion

The most important point to note about jurisdictional disputes is that they are extremely expensive.  Where possible, parties should always mediate a settlement and proper advice must be taken from expert family solicitors in relevant jurisdictions.  These proceedings are fraught with risk, in terms of local laws which may apply and of which parties may not be aware.  Also there is the new EU Maintenance Regulation (read what I have written about this here) which would seem to indicate that where the parties have entered into an agreement prior to a divorce, which deals with jurisdiction, then that agreement may well determine where the parties are able to litigate their divorce.

It is very important to seek advice from appropriately qualified lawyers in this very difficult area.

© Punam Denley, June 2013

Blanchards Law is a niche family law practice with divorce solicitors, mediators and collaborative lawyers.

Can we help you? Please call us on 0845 658 6639 or email us at pd@blanchardslaw.co.uk