Associate Solicitor, Emily Prince, explains what it means to seize jurisdiction for an international divorce, and why it is important to get legal advice as soon as possible.
What does it mean to seize Jurisdiction?
It is increasingly common for spouses to have international connections, whether through dual citizenship, overseas assets, or living (or planning to live) in another country. This adds another layer to divorce proceedings as jurisdiction must be seized to proceed.
In divorce, “seizing jurisdiction” simply means formally starting divorce proceedings in a particular country so that its courts take control of the case. Where there are international connections, it may be possible to pursue divorce proceedings in England and Wales as well as in another country with which you have a connection. If this is the case, taking advice from lawyers in both jurisdictions can help you determine where it would be most practical and advantageous to begin proceedings.
How is Jurisdiction decided? First in Time
Before Brexit, jurisdiction was very much dictated by the timing of when the divorce application was filed (sometimes referred to as a jurisdiction race or ‘first in time’ rule); now the Courts have adopted a different approach to international matters where there is a cross-border dispute. Although the country in which proceedings are issued first is now not necessarily conclusive as to where the divorce and proceedings will continue, it is still an important factor.
As a matter of fact, once an application is filed, the courts will need to look at whether this is the ‘forum conveniens’ (i.e. the appropriate court to issue in). Factors such as where the assets are, where the family and/or the children have been living, and live will be given weight in assessing where proceedings should continue.
How do I apply for jurisdiction in England and Wales?
If applying for a divorce or dissolution in England and Wales, one or more of the following criteria need to be applicable:
- both parties to the marriage are habitually resident in England and Wales;
- both parties to the marriage were last habitually resident in England and Wales, and one of them continues to reside there;
- The respondent is habitually resident in England and Wales;
- The applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made;
- The applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made;
- both parties to the marriage are domiciled in England and Wales; or
- Either of the parties to the marriage is domiciled in England and Wales.
How do I know which country will be most favourable to me?
The law in England and Wales is generally more favourable to the financially weaker spouse who has been looking after the family, especially if the marriage is a long one and there are children of the marriage. It is important to evaluate where you can get the most favourable financial settlement to ensure your needs (and the needs of any children) are met.
Another factor to take into consideration is time. Divorce in England and Wales is renowned for being the most efficient, as it could conclude in 6 – 9 months if dealt with in a straightforward way. Another positive factor is that you do not need to obtain a separation before a divorce, as is the case in jurisdictions such as Ireland (the couple must live apart for at least two of the three years before filing for divorce) or Italy.
Jurisdiction Disputes
One forum may be more convenient than another one. This may be due not only to your financial position, but also on where the assets are located, as well as where you live and intend to continue living.
There are cases where a divorce may have been obtained in one jurisdiction, but one party may be able to apply to the English courts to deal with financial matters. There is a specific procedure under Part III of the Matrimonial Causes Act 1973 that would need to be undertaken in this case.
This is why it is so important that you obtain legal advice in all jurisdictions that may be available to you, to make an informed decision as to where it would be more beneficial for you to commence proceedings.
As cross-border disputes can be very costly and cause delay, it is essential to consider whether the costs incurred because of embarking on a dispute would be proportionate in terms of the likely outcome in each jurisdiction.
What should I do first to seize jurisdiction?
There are very strict rules around how jurisdiction is seized, and these must be clear to you from the very outset. If you find yourself in a position where there are international elements, you should keep the following in mind:
- Ensure you have your marriage certificate – This is required to start divorce proceedings in England and Wales, as a copy of the original document needs to be filed with the Court when making the application.
- Act promptly – You should seek independent legal advice in all jurisdictions you would be entitled to file an application in. This will enable you to make an informed decision regarding where you can obtain the best possible outcome in the most time- and cost-efficient manner. We offer an initial fixed-fee meeting where jurisdiction can be discussed.
- Be on your guard – You should not disclose anything to your spouse, as this may tip them off and enable them to seize jurisdiction first, in the place that is most favourable to them.
Do keep in mind that they would have been advised to do the same if they sought legal advice. You should therefore never assume that you should hold things off, as your spouse may have already started proceedings without telling you. In such situations, time really is of the essence.
How can we help?
At Amphlett Lissimore, we are experienced in cross-border disputes. Our Family Law specialists can advise you on the best way forward and where you stand legally during an initial fixed-fee meeting. The fee includes a meeting of up to an hour, followed by a letter summarising our preliminary advice.
We have built connections with lawyers who are qualified and practising abroad, so we may be able to refer you to competent lawyers, depending on the jurisdiction you need to get advice in.
Should any of the issues raised in this article apply to you, we would be happy to arrange an initial meeting and advise on the steps that need to be taken to deal with your matter efficiently.
