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 The multi-cultural nature of our society and the speed and ease with which we can travel and live abroad highlights the potential for people to shop around amongst countries for a forum for their divorce (‘a jurisdiction’) which will benefit them financially to the detriment of their spouse. In the UK the court when dividing up marital assets will usually, provided it meets both parties needs, separate matrimonial property (money or assets acquired during the marriage) from non-matrimonial property (money or assets acquired either pre-marriage or after separation), then divide the matrimonial property equally between the parties, leaving non-matrimonial property with the person who acquired it. Almost inevitably after a very long marriage most of the marital wealth, no matter who generated it, will fall into the category of matrimonial property. The court will then adopt the ‘yardstick of equality’ between the parties. This can seem unfair to the wealth generating spouse who may want to consider whether he or she has sufficient links to another country with a more favourable approach. Conversely a poorer spouse may find it beneficial to issue divorce proceedings in the United Kingdom to take advantage of the court’s tendency to divide marital property equally. However, choosing a jurisdiction for a divorce is not as simple as just deciding to issue proceedings in a particular country. Usually there is some requirement that a person establishes residency, often over a period of time, before proceedings can be issued. A person living within a member state of the European Union, including the United Kingdom, may issue divorce proceedings in any country in which one or both spouses have resided for at least a year before the petition is issued. Alternatively where at least one spouse is a national of the member state in question and has his or her domicile there residency must be for six months. A person is domiciled in a particular country if he or she intends to make that country a permanent home. Sometimes, where one or both parties have a choice of countries within which to divorce there will be a race to see who can issue proceedings first. Issuing a petition for divorce in a particular country does not prevent a spouse from issuing a second set of proceedings elsewhere but a decision will then have to be made by the courts as to the appropriate forum for the divorce. This will usually be the country in which the marital assets are situated or where the family, including any children, actually live. Nicola Furmston © Barker Gotelee |
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