London has often been referred to as the ‘divorce capital of the world’. But why is it that so many people with foreign nationality choose to end their marriages in England and Wales?
England and Wales is an attractive jurisdiction in which to get divorced because the English courts have a wide discretion to take various factors into account when making financial awards. These include the needs of the financially weaker spouse and the children of the family. For those spouses who are reliant on their spouse’s wealth or earnings to safeguard their marital standard of living, this is a key reason to try and bring their divorce to England and Wales.
In England and Wales, the starting point is of an equal division of all marital wealth, regardless of whose name it is in, and even pre-marital and inherited wealth is not excluded from consideration - although consideration of non-marital wealth doesn’t start from the same 50:50 approach. The housing needs of the minor children of the family are usually prioritised.
Such a wide level of discretion and focus on achieving a “fair” outcome and providing for the needs of the children and the financially weaker spouse may starkly differ from courts in other jurisdictions. If a spouse, having first taken legal advice in all potential jurisdictions, considers that England and Wales is his or her preferred forum, they will need to ensure that the courts in England will agree to deal with the case. The other spouse may object to England and seek a different jurisdiction.
Thankfully, the days of fault-based divorce in England and Wales have passed. There is no need to prove any factors or reasons for your marriage breaking down. There is, however, the need to ensure that the marriage was a valid one in the first place and that there is some sort of jurisdictional tie - a connection to England and Wales for one or both of the parties.
A marriage that was entered into in another country can be dissolved in England as long as it was a legally binding marriage in the country in which it took place. Many foreign nationals think that they must re-register their marriage in England to divorce here, but that is not necessary.
As far as the jurisdictional tie is concerned, the spouse issuing the divorce application will need to show that either or both parties are habitually resident in England and Wales, or that the spouse applying for divorce has been habitually resident here for at least 1 year. If none of this applies, the spouse wishing to divorce in England will need to show that he or she is domiciled in England and Wales and has been habitually resident here for over 6 months or that both spouses are domiciled in England and Wales.
Domicile and habitual residence are difficult legal concepts, and the advice of a solicitor is highly recommended. But, once a connection to England is established, the best advice is to move quickly before the other party issues proceedings somewhere else, where the outcome will be better for them than it is for you.
For help and advice on this topic or related issues, please do not hesitate to contact Julie Cohen on 01727798067 or email Julie.cohen@salaw.com.
