If a married couple decide to go their separate ways, it is very common for one or both of them to return home to be close to their parents or siblings. Relations can often provide a valuable support network for someone coming to terms with a separation.
If this return home progresses to anything approaching a permanent relocation, and the move is to another legal jurisdiction, it can have a massive impact if there is going to be a divorce.
Whilst we find that many are alive to this reality, particularly if they are moving overseas, in our experience this is less the case if the ‘move home’ involves a relocation to or from Ireland.
How a divorce is handled and one’s entitlement from a divorce can change enormously depending on which of the two competing jurisdictions, (Ireland or England and Wales) are seized first.
To commence divorce proceedings for a divorce in England and Wales requires:
- the couple to have been married for a year, and
- the marriage to have irretrievably broken down.
To commence divorce proceedings in the Republic of Ireland requires:
- the couple to have lived apart for four of the last five years, and
- there to be no reasonable prospect of reconciliation.
Whilst Irish ministers are currently reviewing whether this four year requirement should reduce, it is thought that any change in these rules would require a referendum. It is possible for couples in Ireland to judicially separate, however they would still need to wait before concluding the proceedings through a divorce. If a divorce is sought at the earliest opportunity and there is the choice, proceedings might be considered in England and Wales.
But what of the financial issues?
At present, the approach of the Courts in England and Wales compared with that in Ireland is markedly different.
The most significant difference is in relation to the ‘clean break’, which is the severance of financial ties between a couple on divorce. In England and Wales, the Courts will try to bring about a clean break between the parties wherever possible. If there are maintenance claims and the resources will allow it, they might be capitalised to this end.
In Irish law, there is no provision for a clean break, either in relation to judicial separation or divorce. Whilst recent case law stresses that full and final settlement agreements should be given weight, the reality is that the effective severance of ties in law is not available.
The Courts in England and Wales operate with the objective of achieving a fair outcome. There should be no bias in favour of the ‘breadwinner’ as against the ‘homemaker’. The Court should check its views as against the yardstick of equality and depart from it only if fairness requires it.
In Ireland the Court is under a duty to ensure that proper provision is made for one’s spouse. Whilst judicial discretion is exercised widely, the seminal case of T v T  3 IR 335 referred to a ‘benchmark of fairness’ for the dependent spouse as being between one-third and one half of the net assets.
If the couple have pensions regard should be had to where they are administered. Pension schemes administered in England and Wales are required under English law to implement any pension sharing order made by the English Courts. They are not required, as of right, to implement such orders made in Ireland. The same applies if the order is made in England and Wales over schemes administered in Ireland.
If the pension entitlements are sizeable, great care will need to be taken – it is not uncommon for proceedings to be issued in a particular jurisdiction, only for the couple to find that the pension entitlements that had been assumed to exist are no longer available.
Great care needs to be taken when contemplating divorce in any circumstances; however the challenge of deciding in in which jurisdiction proceedings should occur is one that should only be approached with the benefit of specialist advice from an expert in international divorce and cross border issues.
Andrew Barton is a partner in the family team and recognised in both Chambers and Legal 500 as an expert in International divorce and cross-border issues. If you have any queries with regards to this review, then please don’t hesitate to contact Andrew on 01392 210700 or email firstname.lastname@example.org.