Stephens Scown Solicitors - Divorce and Family Solicitors Exeter, Truro, St Austell, Devon, Cornwall, South West

back

International divorces and jurisdiction

Divorce and Family Lawyers Exeter, Truro, St Austell, Devon, Cornwall, South West

Contact the Family Team

Exeter Office

Tel: 01392 210700 Email us

St Austell Office

Tel: 01726 74433 Email us

Truro Office

Tel: 01872 265100 Email us

The French press has reported that the English Courts are seeing a surge in French women filing for divorce in order to take advantage of the English approach to dividing assets.

The French paper Journal du Dimanche quotes one case involving a woman who in her divorce from her city trader husband received an £800,000 financial settlement in a Paris Court. It is reported that had she filed for divorce in England she would have received just in excess of £3millon.

We have noted a marked increase in the number of overseas clients seeking to issue divorce proceedings in this country. Great care must be taken when making this choice however. We frequently come across situations where spouses have been advised to issue proceedings in this country, only to find later on in proceedings that they would have very likely obtained a more favourable judgment had the proceedings been issued in another jurisdiction.

Similarly, we often see cases commenced in other countries that would have been better progressed through the English Courts. In those situations, thought must be given as to whether it would be appropriate to consider issuing an application under Part III of the Matrimonial and Family Proceedings Act 1984. Whilst offering a means of restoring the balance in a limited number of cases, the Part III process can be a costly and expensive one. It is far better to make the right decision at the outset with the benefit of good legal advice. We have a good number of contacts in other jurisdictions who can assist in this decision.

If the decision is made to issue proceedings in this country and that choice is crucial to a client's prospects of success, it is vital that action is taken not only to issue proceedings, but also to arrange for their service quickly. If they have to be served in a jurisdiction to which the various Brussels Regulations apply, then this will be critical. For non-Brussels jurisdictions, issuing proceedings first is not conclusive when deciding where the case should be dealt with, however it will add weight to a client's argument. We have experience in dealing with the Foreign Process Section at the Royal Courts of Justice, which deals with the foreign service of proceedings.

If a client is beaten to the post in issuing proceedings then it is possible to issue an application for a stay of those foreign proceedings, where the test the Court applies is one of balance of fairness and convenience. The scope for stays in respect of proceedings in Brussels II countries can be quite restrictive, however advice from a specialist family lawyer can help in moving that forward.

Consideration might also be given to applying for a Hemain injunction. Such injunctions are granted by the English Courts if moving forward with proceedings in another jurisdiction would be vexatious or oppressive and England and Wales is the natural jurisdiction to progress the case. The English Courts have no power to bind the foreign Court. Instead, the injunction is a personal order to restrain the party themselves from going forward with the foreign case.

If all else fails, it can be worth considering making a request to the foreign Court to have the proceedings dealt with as if they were being heard in England and Wales. In jurisdictions applying a civil law code, such as France, the Courts can consider the law ‘most appropriate to the family'.

Other points to look out for:

If when dealing with proceedings in this country one is looking to sell or transfer assets held in a foreign jurisdiction, it is important that full consideration is given to the tax implications of such a sale or transfer. For this reason it is often necessary to seek specialist advice from a foreign tax expert.
It is important not to forget about immigration issues arising from family law cases. If one's right to remain in the UK is dependent on the marriage continuing, or indeed, their right to reside in the foreign jurisdiction, the implications for the case could be significant if this is overlooked.

Andrew is an Associate Solcitor 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.

Brussels II jurisdictions: