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International Divorce and Forum Shopping

For high-net-worth (HNW) couples, the country in which a divorce petition is filed matters. One reason so many international divorce cases are heard in London is that courts in England and Wales are well-known for ordering generous settlements that benefit the financially weaker party in HNW divorces.

Filing Your Petition In England And Wales

There are several reasons why London is known as the “Divorce Capital of the World” and why many will look at “forum shopping” (i.e. to get divorced in the most advantageous country), including:

Unlike most jurisdictions, the presiding judge ultimately decides how the finances will be divided in a divorce. Although they must consider the provisions set out in section 25 of the Matrimonial Causes Act

1973, the judiciary, who generally assume that the financially weaker party must be protected, has the ultimate say in a Financial Order;

Although the starting point in a divorce financial settlement is that both spouses are granted an equal share of the matrimonial assets, a judge can (and usually does) adjust this as they think fit. For example,

lifetime spousal maintenance may be awarded if it is deemed necessary to do so. Furthermore, English law takes a wider view of what constitutes marital property compared with other jurisdictions.

In the landmark decision in White v White [2000] UKHL 54, Lord Nichols declared that achieving fairness in a financial settlement meant that “there should be no bias in favour of the money-earner and

against the home-maker and child-carer”. This means that when an English court assesses the contributions of each party to the marriage, a spouse who gave up their career to look after the home and any children is seen to have contributed as equally as the spouse who earned the income.

For many HNW couples, the first legal matter to be decided is what jurisdiction should the divorce be heard in.

Can I have my divorce proceedings dealt with in England and Wales?

To have the legal right to petition for divorce in England and Wales either you or your spouse must have sufficient connection to either country. However, this does not mean that one or both of you have to live here permanently.

If you are filing for divorce after the end of the Brexit transition period (11pm on 31 December 2020) you may be able to petition in England and Wales if:

You and your spouse are habitually resident in England and Wales.

You and your spouse were both last habitually resident in England and Wales and one of you continues to reside there.

The Respondent is habitually resident in England and Wales.

The Applicant is habitually resident in England and Wales and has resided there for at least one year immediately before the application was made.

The Applicant is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the application was made.

You and your spouse are domiciled in England and Wales. You or your spouse is domiciled in England and Wales.

What is the difference between domicile and habitual residence?

If you are a habitual resident of a country, then your daily life happens there. It is the place where your children go to school, your work happens, your pets live, and where you spend time with your friends and participate in your hobbies.

Your place of domicile is where your permanent home is. You automatically acquire domicile in your country of birth. However, you can change your domicile if you move and set up home permanently in another country.

The 2019 case of Pierburg v Pierburg[1] examined whether or not an English court had jurisdiction to deal with the wife’s divorce petition. Both spouses were German nationals and had been married for 30 years. Mrs Pierburg had signed a Prenuptial Agreement, agreeing not to make any claims on her husband’s assets or apply for spousal maintenance. It was imperative for Mrs Pierburg that she could file for divorce in England, as a German court would be likely to uphold the terms of the Prenuptial Agreement. An English court had the power to set aside the Prenuptial Agreement (which are not strictly legally binding under English law[2]) and award her a substantial settlement if it would not be fair to uphold the pre-nuptial agreement.

Since the 2000s, the couple had lived in Switzerland. They also maintained a house in London. When she separated from her husband in 2019, Mrs Pierburg moved into the London property. After six months, she filed for divorce in England arguing that she was domiciled in the UK.

Mr Pierburg filed for divorce in Germany, claiming his wife had never indicated she wanted to live permanently in London.

The Court agreed with Mr Pierburg, following Munro v Munro [3] where it was held that, in order to establish habitual residence, a spouse had to be “habitually resident”, and not merely “resident” in the jurisdiction for the six or 12 months required, not just habitually resident at the date of the petition and merely resident for the rest of the time. Before 2017, Mrs Pierburg had no links to the UK aside from the property. She may have visited London regularly but was not a habitual resident. Furthermore, her emotional and physical ties lay in Germany, not the UK; therefore, she was not domiciled in the latter country.

Jurisdictional disputes often arise when one spouse wishes to file for divorce in England and Wales and the other party starts litigation proceedings in another jurisdiction and it is imperative you get it right. In this situation, your Divorce Solicitor may apply for a Hemain Injunction.

What is a Hemain Injunction?

Hemain Injunction derives from the Court of Appeal case of Hemain v Hemain[4]. It is a temporary interlocutory injunction[5] that prevents a party from pursuing litigation in another country. It is a powerful tool that can be used where one party to the divorce is delaying matters by contesting the jurisdiction of the English Court whist at the same time pursuing litigation in a

nother jurisdiction. To be granted a Hemain Injunction, you will need to prove that your spouse acted vexatiously, oppressively, or unconscionably in deliberately delaying litigation in England and Wales and advancing proceedings overseas in order to gain a forensic advantage.

Final words

HNW couples planning to divorce must consider jurisdiction if there appear to be several available. Investing in a Divorce Lawyer who has experience in international family law and HNW financial settlements will provide the best chance of securing the most advantageous jurisdiction for what you want to achieve when it comes to dividing your marital wealth.

Edwards Family Law is a niche London-based firm specialising in high-net-worth divorce and international family law. To find out more about filing your divorce petition in England and Wales, please get in touch by phone +44 (0)20 3 983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.