Our guide to helping divorcing couples living abroad

Charlotte Posnansky, a specialist family lawyer at Charles Russell, explains some of the possible legal implications for divorcing couples living abroad.

For many, the lure of a new and exciting lifestyle in France with a desire to exit the rat race in the UK proves to be too strong. However, the move does not always play out in the same way as the daydream, and pressures of life abroad can just as easily lead to the breakdown of a marriage as the pressures of life in the UK. Should the worst happen, a divorce in France may become all too real.

While it has been hard to escape the headline grabbing figures in recent years which have led to the UK acquiring the reputation of being ‘the divorce capital of the world,’ the approach of the French courts is very different. Generally, the French courts are more formulaic and less generous to the weaker financial party. Conversely, the English courts have a very broad discretion and wide reaching powers.

Equal asset division

In the case of White v White, the House of Lords held that the contribution of a homemaker should be treated as being equal to that of a breadwinner and this paved the way in the ‘big money’ cases which followed for a move in towards an equal division of the capital assets. The subsequent House of Lords decision in Miller and McFarlane extended this generous approach to the division of income and gave further guidance on the application of principles of “fairness, needs, compensation and sharing”.

As a result, wives living abroad with the most tenuous links to the UK will clamour to establish jurisdiction, luring their husbands to London for the requisite period of residence. Conversely, a cynical husband might encourage a move to a less paternalistic civil law jurisdiction, such as France. A less calculating couple, however, may simply muddle along together and then be very surprised to learn that their innocent decision to move to France makes it difficult, or perhaps even impossible, to divorce in the UK, notwithstanding their nationality and the history of the marriage.

A question of residence

Within EU countries, there are a number of different facts upon which a couple can rely to anchor their divorce to one particular jurisdiction or another. However, all these different bases relate to one or other party’s habitual residence or domicile.

For a couple living in France, their habitual residence will usually be France and their domicile will be the only foundation upon which they could therefore base a petition. Very importantly in this respect, a European Council Regulation known as ‘Brussels II’ provides that if two different EU countries (excluding Denmark) have jurisdiction to deal with the divorce there is a strict ‘first in time’ rule so that if proceedings are issued in one member state, the other member state will be ‘frozen out’ of dealing with the case.

This means that it is extremely important to take very urgent advice and to move quickly in cases where two EU countries may have jurisdiction. In many cases a wife will be very keen to issue her petition in the English courts and a husband may wish to take early steps to issue in France (or other European jurisdiction). The timing is decisive and can make a significant difference to the outcome of the case.