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The festive period is normally a time for happiness and celebration when families come together. However, the stress and strain of Christmas can cause marriages which are already hanging by a thread to snap completely. For international families, the pressure of Christmas can be even more intense, especially for those trying to juggle family commitments in different countries.
If you have decided that your relationship must end, it is crucial to understand the divorce process in England and Wales (divorce law is different in Scotland and Northern Ireland), so you can protect the best interests of you and your children.
This guide is designed for international families who have decided to end their marriage. It assumes that there is no domestic violence or abuse in the relationship and each party has provided full and frank disclosure of their assets. Although the aforementioned issues are outside the scope of this article, we will be covering them in detail in the New Year.
The grounds for divorce in the UK
To obtain a divorce, one party (known as the petitioner), must file a divorce petition using form D8 on their spouse (hereafter known as the respondent).
The only ground for divorce in England is that the marriage has irretrievably broken down. For the court to make a ruling that this has occurred, one of the following five facts must be proven:
- the respondent has committed adultery, and the petitioner finds it intolerable to live with the respondent
- the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent
- the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition
- the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition and the respondent consents to a decree being granted
- the parties have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition
Which jurisdiction should the divorce be filed in?
One of the key decisions for international couples contemplating divorce is which jurisdiction to file the petition in. This is especially relevant for high-net-worth couples. London is known as the divorcecapital of the world because, historically, English judges have shown particular generosity to the wives of wealthy men. If you are the financially stronger partner in the marriage, the best family lawsolicitors will make it a priority to fight tooth and nail to avoid having your divorce decided in London.
Time is of the essence if there are competing jurisdictions, as often the deciding factor will be in which country the petition was lodged in first.
The courts in England and Wales only have jurisdiction to hear proceedings related to a divorce if:
- the court has jurisdiction under the Council Regulation EC 2201/20031, the Council Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in matters of Parental Responsibility (commonly called Brussels II bis); or
- no country has jurisdiction under Brussels II bis and at least one of the parties is domiciled in the UK when proceedings begin
The court must have consideration to the habitual residence and domicile of the couple when deciding on jurisdictional issues. The notes in the margin of Form D8 say in relation to habitual residence and domicile state:
- habitual residence—your habitual residence is the place in which your life is mainly based. You must be settled there and intend to stay settled there. Some of the following may apply: you work there, own property, have your children in school there, and your main family life takes place there
- domicile—your domicile is the main permanent home in which you live, or to which you intend to return. When you were born you will have acquired your parents' domicile (either your father's if they were married, or your mother's if they weren’t married or if your father died before you were born). If you have since moved to another country and made that your permanent home then your domicile may have moved there
Working out the financial settlement
One of the major considerations for most couples when getting a divorce is the financial settlement. If the petitioner and respondent have assets in the UK and overseas, working out who gets what can be very complex. Also, the financially weaker party may be entitled to spousal maintenance. This can be paid on a monthly basis or via a lump sum and can continue indefinitely (although this is rare). The payment of spousal maintenance automatically ends if the party receiving it gets remarried or dies.
The family law system in England and Wales is designed to support couples in working out the division of matrimonial assets between themselves. If a dispute arises, parties are encouraged to try and resolve matters through round-table negotiation and/or mediation. Formal litigation should only be contemplated as a last resort.
If a court order is required to resolve a dispute over finances, the petitioner and respondent will normally be required to attend a Mediation Information and Assessment Meeting (MIAM). A mediator will talk to the couple and explain how mediation works, allowing them to decide if they wish to try and reach a resolution using this method. If mediation fails or is not considered an option, the mediator will need to sign a form stating that the couple has considered the method before the couple can apply to the court.
In summary
The most important step to getting a divorce in England and Wales is to contact an experienced family lawyer who can advise you on the process, the jurisdiction where it is best to file the petition and your options regarding the financial settlement.
Our next blog will focus on how to make arrangements for your children when getting a divorce.
OTS Solicitors is one of the most respected immigration and family law firms in London and is highly recommended by the Legal 500 for human rights and Immigration Law. By making an appointment with one of our immigration and/or family solicitors, you can be assured of receiving some of the best legal advice available in the UK today.