If you are contemplating divorce and have connections to multiple countries, the jurisdiction in which you initiate your proceedings can have an impact on the outcome. These types of divorces, known as cross-border divorces, are commonly associated with countries outside the United Kingdom. However, a recent ruling by the Supreme Court has emphasised that even within the UK, regional variances can influence the agreement on post-divorce maintenance.
Differences in divorce laws across local jurisdictions imply that there may be advantages to commencing divorce and maintenance proceedings in one UK area as opposed to another, as demonstrated in the case of Villiers v Villiers [2020]. This case revealed that subject to meeting specific criteria, the courts allow individuals to choose the country in which they initiate proceedings. Selecting the appropriate jurisdiction from the outset could lead to substantial gains or savings depending on your financial circumstances.
Firstly, What is a Cross-Border Divorce?
A cross-border divorce in the UK refers to a divorce case where one or both spouses have connections to more than one country. It occurs when either the couple's marriage took place in one country while they reside in another, or when they have ties to different countries through nationality, residency, or assets. In such cases, the jurisdiction where the divorce proceedings are initiated can have implications for the legal process and the outcome of the divorce settlement, including matters related to finances, child custody, and spousal support. Cross-border divorces often involve considerations of international law, conflicts of laws, and the recognition and enforcement of foreign judgments.
The Villers v Villers Cross-Border Divorce
The Villiers v Villiers [2020] case revolved around Charles Villiers, a relative of the Duchess of Cornwall, and his wife Emma Villiers. Throughout most of their marriage, they resided in Scotland. Following their separation, Emma moved to England with their children. Charles initiated divorce proceedings in Scotland, while Emma did so in England. Since it is not possible for both countries to handle the same divorce case, Emma agreed to let Charles proceed with his petition in Scotland.
Later on, Emma applied to an English court for maintenance and was granted it. She was able to apply in England because, at that time, she met the criteria of being "habitually resident." It is possible to argue that one is habitually resident in a country if they have lived there for a period and have severed their ties with their previous country of residence.
Charles believed this decision was incorrect and unfair, as he would have been in a more favourable position and had to pay less if the case had been decided in the Scottish courts rather than England. He deiced to take his case all the way to the Supreme Court, appealing the decision. His argument was that since he had already initiated divorce proceedings in Scotland, where they lived as a married couple, all matters should be handled in Scotland.
The case before the Supreme Court centred around the question of whether it was permissible for a divorce to be heard in one part of the UK and a maintenance summons in another.
Different Approaches to Divorce: Contrasts in Legal Systems
The handling of divorces and financial arrangements varies significantly among the courts in England and Wales, Northern Ireland, and Scotland.
Traditionally, Scottish and Northern Irish courts lean towards a "clean break" settlement, whereby parties sever most financial ties within a few years, except for ongoing child maintenance responsibilities. Conversely, in the English and Welsh courts, it is not uncommon to grant lifetime maintenance, resulting in a potentially better financial outcome for a less affluent spouse if they file for divorce in England or Wales. Naturally, the opposite holds true for wealthier spouses, such as Charles, and the disparity in outcomes can be considerable over one's lifetime. Furthermore, Scottish courts are generally more inclined to exclude assets from divorce considerations, especially if those assets were acquired or inherited prior to the marriage when compared to other regions in the UK.
The Supreme Court's Ruling on Charles' Divorce
The Supreme Court, in disagreement with Charles, ruled that the divorce proceedings could take place in Scotland while the maintenance matters could be heard in England. The majority of Supreme Court judges believed that the two sets of proceedings were distinct and not interconnected, allowing them to proceed separately in each jurisdiction. This decision reaffirmed the possibility of having a certain degree of choice in selecting the country in which to initiate divorce proceedings.
During this decision-making process, the Supreme Court also had to consider European Union legislation governing the appropriate jurisdiction for maintenance proceedings. It is important to note that these regulations are scheduled for repeal as part of Brexit. Following December 31, 2020, the handling of cross-border divorces remains uncertain. However, courts in one jurisdiction may have increased authority to determine if they are the correct forum, potentially limiting the opportunity to choose the most favourable part of the UK for one's purposes.
Cross-Border Divorce Support from Witan Solicitors
We understand that every relationship breakdown is unique, with numerous factors to consider to meet your specific needs and address your concerns. Whether you require court proceedings or prefer to reach an agreement outside of court, we are here to provide guidance on the best possible approach for your situation.
For a consultation and further information, please reach out and contact us, or visit our dedicated page on divorce financial settlements.
Please be aware that this article serves as general information only and should not be considered as legal or professional advice. It is important to note that the law may have changed since the publication of this article.
FAQ
Can you obtain a divorce in one country and enter into marriage in another country?
Yes, it is possible to obtain a divorce in one country and subsequently get married in another country.
Is a divorce granted in a foreign country recognised as valid in the UK?
Yes, a divorce granted in a foreign country can be recognised as valid in the UK if certain criteria are met.
Which country is known for having a simplified divorce process?
The ease of obtaining a divorce can vary, but it is important to consult with legal professionals to determine the most suitable jurisdiction for your circumstances.
How can I initiate divorce proceedings in the UK if my marriage took place in another country?
To initiate divorce proceedings in the UK for a marriage that took place in another country, you should seek legal advice and follow the appropriate legal procedures, which may involve meeting specific requirements and providing relevant documentation.
