Island knowledge, national expertise
Divorce and Foreign Nationality
Approximately one in six marriages in the European Union is between persons of different nationalities. Not surprisingly, approximately one in six divorces also involves spouses of different nationalities.
This can make for some complexity on divorce as to which country's law should apply to the divorce proceedings. This is eased to some extent by the fact that some jurisdictions will apply the law of the nation of the person being divorced, rather than their own law, when appropriate. For divorce proceedings commencing in this country, UK law is applied no matter what the nationalities of the divorcing couple are.
The UK has opted out of an EU proposal that seeks to set a list of criteria for deciding which country’s law should apply on divorce, the main criterion being the country in which the couple had its last home. This will no doubt come as a relief to some, as the UK’s approach to financial settlements is among the most generous in the world. Also, prenuptial agreements are not binding in the UK, as they are in many European countries – most of which also exclude from the pool of assets to be divided on divorce any assets acquired through inheritance. However, following a decision of the Court of Appeal in 2009, 'prenups' now must be considered by the court where they have been entered into freely and without undue influence. Post-nuptial agreements are normally enforceable.
By and large, where there is doubt about which country’s law should apply, the divorce will be dealt with under the law of the country in which the divorce proceedings were first commenced. This explains why the UK is a favoured place to commence proceedings in ‘big money’ cases.
A 2011 case confirmed the principle that where the question of in which country the children of the marriage should be raised is concerned, the needs of each child must be considered separately: the children are not to be considered ‘as one unit’.
In recent years a number of cases have come before the courts involving foreign nationals or where there is a foreign residence element to the divorce. The British courts have been robust in their defence of their right to have jurisdiction in such cases. In 2012 the UK improved the ability of parents to enforce residence orders if their children have been taken to a foreign country, when the provisions of the 1996 Hague Convention came into effect.
A 2013 case confirmed that where a foreign court has no outstanding matters before it with regard to the residence of a child, the UK court does not need the foreign court to formally renounce jurisdiction if the child concerned has become habitually resident in the UK.
More recent cases have confirmed the UK as a jurisdiction in which a fair hearing and robust enforcement of court rulings apply: in a 2015 case, a husband who refused entirely to compy with court orders concerning his worldwide assets was ordered to be imprisoned for contempt of court.
In 2018, a case led to the ruling that a pre-nuptial agreement made in Italy by a non-Italian speaker was not enforceable in the UK, on the ground that the woman who signed it did not fully understand its potential consequences.
If you are facing a relationship break-up with a foreign element, contact us for advice, inlcuding revising your will to reflect your new circumstances.
One could reasonably expect Brexit to lead to changes in the way the UK courts approach these issues.
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