In recent decades, there has been an exponential rise in the number of clients whose affairs are multinational. This can raise some interesting issues for a family and matrimonial lawyer. The first of these would be to ascertain whether or not the courts in England and Wales have jurisdiction to entertain divorce proceedings in the first place.
London has often been touted as the divorce capital of the world. In basic terms, if you are acting for the financially poorer party you would invariably suggest that, if possible, proceedings should be issued in this jurisdiction. Legislation guides us as to whether the case can be heard in the jurisdiction of England and Wales. This is set out in article 3(1) of Council Regulation (EC) No 2201/2003 of 27 November 2003 (similar provision is made for civil partnership proceedings in the Civil Partnership (Jurisdiction and Recognition of Judgments) Regulations 2005). To issue a petition for divorce, it is necessary to satisfy one of the following connections:
- That the petitioner and respondent (or just the respondent) are habitually resident in England and Wales.
- That the petitioner and respondent were last habitually resident in England and Wales and the petitioner or the respondent still resides there.
- That the petitioner is habitually resident in England and Wales and has resided there for at least a year immediately before the presentation of the petition.
- That the petitioner is domiciled and habitually resident in England and Wales and has resided there for at least six months immediately before the petition.
- That, in a matrimonial case only, the petitioner and respondent are both domiciled in England and Wales.
If none of the above connections are made, the court may still have jurisdiction on an alternative basis (known as the residual jurisdiction) outside the regulations. Generally, this would be where there is no court in an EU member state that has jurisdiction or, in England and Wales, based on domicile – the country that is considered to be their permanent home (as opposed to habitual residence, where you reside voluntarily for settled purposes for a substantial period).
Once one of these connections has been established, the court is able, as a matter of law, to deal with the case. However, more than one country could technically have jurisdiction and there can be a jurisdiction ‘race’ or arguments surrounding forum conveniens – particularly relevant when dealing with the non-EU parties.
Where issues relating to foreign law need to be determined, they are questions of fact for the trial judge
Having negotiated the jurisdiction hurdle, there will then be other issues to consider:
- Foreign law: where issues relating to foreign law need to be determined, they are questions of fact for the trial judge. Ordinarily, affidavit evidence from foreign experts will be required, which will help the judge make a decision.
- Difficulties obtaining evidence: it may be necessary to obtain evidence from a foreign witness. In such circumstances, the High Court can order a letter of request to the judicial authority where the proposed deponent resides (if this is allowed by that country’s government) and appoint an appropriate examiner. These cannot be fishing expeditions and the documents sought must be specified.
- Difficulties tracing assets: wealthy parties can have complicated structures in place, seeking to shield them from the prying eyes of the courts, their spouse or the tax authorities. Frequently, properties are owned by offshore companies, whose shares are held behind a different veil. The idea is to become impenetrable, so significant resources may be required to unravel the structure to ascertain the real beneficial owner.
- Difficulties in valuations: assets can be held anywhere in the world. While we all have a reasonable idea where to source the appropriate experts to value UK property or companies, it can be much more difficult to value foreign assets. It is necessary to have a global network of contacts – experts in their respective fields – to assist in the valuation process.
One final element when dealing with divorces with an international element is the Matrimonial and Family Proceedings Act 1984. If, for example, the husband has obtained a foreign decree of divorce, prior to the 1984 Act the wife was left without a remedy in England. The 1984 Act addresses this issue by providing a discretionary remedy whereby, if leave is granted, a financial remedy can be pursued in this jurisdiction. The legislation is designed to be used where no, or no adequate, provision has been made on divorce by a court outside England and Wales and the parties have substantial connections with England. Although there may be an order in an overseas jurisdiction, that may not be an end to the matter.
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