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Many people are under the impression that they can only divorce in the country in which they marry. This is in fact a myth. Here, we look at the ability to divorce in an EU member state pursuant to “Brussels II Revised”.
Brussels II Revised repealed and replaced “Brussels II” which provided for ‘the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses'. In the current context, Brussels II provided a legal basis for member states to recognise and rely on judgments and proceedings in relation to divorce and financial proceedings. Brussels II Revised imitates the provisions of Brussels II. In fact, Brussels II Revised makes no changes to any of the original provisions in respect of divorce proceedings save for the numbering of the articles. However, neither Brussels II nor Brussels II Revised make provision for divorces in respect of same sex marriages. There is, at present, no universal treatment of same sex divorces and the dissolution of civil partnerships amongst member states. Specialist advice should be sought in respect of this issue.
Generally speaking, you may petition for divorce in England regardless of where the marriage took place if the following criteria are met:
If the criteria can be established, the English Courts will have jurisdiction to entertain a petition for divorce and the financial proceedings. Although you may be able to petition in England and Wales, you or your spouse may also be able to petition in other countries depending on your circumstances.
You may question: does it matter where I divorce? The answer is “yes”. Each member state applies its own law and practices to divorce and financial proceedings. As a result, a particular member state may provide for a more advantageous outcome to you, particularly in relation to the financial proceedings, compared to another member state. It may therefore be more advantageous to petition in a particular country. In the circumstances, if you have a choice of jurisdictions you should “shop around” to establish which will be most beneficial to you. When “shopping”, you should have regard to key considerations to include, but not limited to:-
A further key consideration is, “What law will be applied?” This may be seen as an absurd question but pursuant to the EU Regulation known as “Rome III”, those member states who are a party to the Regulation may have “a choice of law” where the Courts can choose which law to apply depending on the nationality of the parties. A member state may therefore choose to apply English law to proceedings if it is deemed appropriate. England is not however a party to the Regulation and so, proceedings brought in the UK will be subject to English Law.
The list of considerations when choosing a jurisdiction is endless! It is therefore important to obtain specialist legal advice to ascertain which country would be most beneficial to you. You must however act fast! If jurisdiction can be ascertained in one or more countries, there is always a risk that your spouse may decide to pursue proceedings in a country of their choosing. A jurisdiction race may begin.
If one or more countries can legally entertain divorce proceedings, it will be the Court which is first seized who will be able to deal with the divorce. It will ultimately be determined on a “first come, first served” basis. You may therefore find yourself racing against your spouse to ensure proceedings are commenced in your country of choice.
If proceedings are issued in one country, this may not necessarily be the end of the story. If proceedings are determined in a member state in relation to the divorce and even the financial claims arising from the marriage, this does not automatically bar the Courts of England and Wales from making further Orders. An individual may, subject to the provisions of the Marriage and Family Proceedings Act 1984, apply to the English Courts for relief.
It is important to seek expert legal advice to ensure proceedings are brought in the country which is most beneficial to you. Our specialist family law team will be able to advise you of the options available to you. Please do not hesitate to make an appointment to meet a member of our family law team at our offices in Spalding, Nottingham, Peterborough or Alconbury. Alternatively, please feel free to contact a member of our team by telephone on 01775 842500 to discuss matters or please send an e-mail to firstname.lastname@example.org.