An English wife has been denied a share of her husband’s lucrative pension scheme because they were living in France at the time their marriage broke down.
The couple married in Wales, lived in the UK for nine years and were both British. In spite of this and the fact that Mrs Pell issued her divorce petition in the English Courts first, she was denied the right to divorce in England.
Before a Court can allow a divorce to proceed, it must be satisfied that on the day the divorce was commenced, at least one of the divorcing parties was either domiciled or habitually resident in the country of the divorce court for the required period of time. The time period and strict wording of the rules is governed by European law.
At the time her petition was commenced in this country, Mrs Pell did not satisfy the criteria laid down under the rules. Her husband issued his own petition in France, where the couple’s home had previously been, and was successful in demonstrating to the Court that France was the right country for the divorce to take place in.
Had both their petitions been issued with the correct jurisdictional requirements (which can sometimes happen), then the petition issued first in time would have been the valid one – in this case the wife’s.
This means that she is prevented from seeking a pension sharing order against her husband’s £1.2million UK based pension scheme. It also impacts on the level of maintenance she could expect and her ability to bring a claim against any assets held in the UK.
Andrew Barton, a solicitor at Stephens Scown commented, “Great care should be taken by any expat considering a divorce, not only to issue in the right country for them, but also to make sure they satisfy the strict residence requirements at the time. The Pell case demonstrates the implications of getting this wrong.
“The question as to whether it’s beneficial to start proceedings in England is sometimes not on the radar of overseas divorce lawyers and we are often approached by husbands and wives when overseas proceedings have already commenced. It can be very difficult to retrieve the position once this has happened. The best advice is to seek early advice.”
Andrew is an Associate Solicitor in the Stephens Scown family law team, which is top ranked in the independent Chambers and Legal 500 guides to the legal profession. Andrew is a Resolution Accredited Specialist in complicated financial matters arising from divorce and has particular experience in dealing with international divorce issues.