Cross-border divorces give rise thorny issues relating to “conflict of laws”. This article discusses the following three important issues:
- Jurisdiction of a court, whether the court is competent to hear and determine a case;
- Selection of appropriate rules of a system of law to apply when deciding a case and finally;
- Recognition and enforcement of judgments rendered by foreign courts.
Hong Kong Office: Unit A, 26/F., CKK Commercial Centre, 289-295 Hennessy Road, Wan Chai, Hong Kong. Tel: (852) 3468 7350
香港灣仔289-295號軒尼詩道朱均記商業中心 26樓 A室
(Registered as a foreign law firm with the Law Society of Hong Kong practising English Law)
London Main Office:
75 Farringdon Road, London EC1M 3JY, United Kingdom
In association with Leslie & Co SSC Solicitors, Blackrock House, 2-8 Millar Crescent, Edinburgh EH10 5HW
2016 Recommended Law Firm in Property Law in England, United Kingdom by Global Law Experts
2016年被Global Law Experts推薦的英格蘭房地產法律的律 師行
2015 – Award for Excellence in Cross Border M&A by Corporate LiveWire
2015年被Corporate LiveWire 授予跨國業務的卓越獎杯M&A
2014 – The only recommended immigration lawyer in England elected by Legal Finest
2014年在英格蘭被 Legal Finest 選為唯一值得推薦的移民律師
The term “conflict of laws” is mostly known in the context of business law and arbitration. It is a set of rules aiming to assist courts in deciding cases which contain a foreign element. There are three main elements to be considered:
(1) Jurisdiction of a court, whether the court is competent to hear and determine a case;
(2) Selection of appropriate rules of a system of law to apply when deciding a case and finally;
(3) Recognition and enforcement of judgments rendered by foreign courts.
The “conflict of laws” principle applies to commercial disputes as well as family law issues. Many people who face marriage breakdowns often find their situation involving an international element. Nowadays, people live increasingly mobile lives, the conflict of laws and its choice of law rules are extremely important when determining circumstances in which people may obtain divorce in places that they have no permanent or habitual residence. Whilst one jurisdiction may recognise and enforce a divorce granted, another jurisdiction may completely disagree.
Here’s a common situation – assume there is a couple who are both British Citizens and the husband owns a business in China which requires him to be permanently stationed in China. This may unfortunately, lead to a marriage breakdown after a few years. If the wife then petitions for a divorce in England whilst the husband is domiciled in China, and the marriage ceremony took place in China, the husband may argue that it did not comply with requirements of Chinese law and “conflict of law” becomes relevant. The husband’s absence raises the question of the court’s jurisdiction, and his argument raises questions of whether Chinese or English Law is used to determine validity of the marriage. Firstly, we should determine whether England has the jurisdiction to hear the case.
Jurisdiction of Court
English Courts do not have the right to deal with a person’s matrimonial affairs merely because they are British Citizens or are present in this country. English courts have jurisdiction to hear a divorce suits only where:
- Both parties are habitually resident in England and Wales; or
- Both parties were last habitually resident in England and Wales and one of them still resides there; or
- The respondent is habitually resident in England and Wales; or
- The petition is habitually resident in England and Wales and has lived there for at least a year immediately before the petition is filed; or
- The petitioner is domiciled in England and Wales and has been residing in England and Wales for at least six months immediately before the petition is filed; or
- Both parties are domiciled in England and Wales; or
- If none of (a) to (f) applies and no court of another EU State has jurisdiction, either of the parties is domiciled in England and Wales on the date when the proceedings are begun.
In summary, to start a divorce in a particular country the couple has to have a connection with that country, either in the form of habitual residence or domicile of origin.
However, if a divorce proceeding takes place in a foreign country, the English court may exercise its discretion and impose a stay on the English proceeding, which means pausing the proceeding whilst the foreign divorce proceeds. The English Court will assess the balance of fairness and convenience, as well as whether to allow the English divorce to proceed.
Choice of Forum
Once you fully understand and confirm that the Court does have the jurisdiction to hear your case. The next step is to consider the choice of forum. Many factors affect whether the proceeding should take place in England and Wales or elsewhere. These include the convenience and the law of other jurisdiction involved. The connection such couples have with a particular forum may depend on their nationalities, domicile, business interests and residence. Careful thoughts must be taken to assess the forum in which they may be entitled to divorce and also the forum which would be most favorable, such as the costs, timescale, ease of enforcing orders obtained and comparative financial settlement.
Recognition of enforcement
When dealing with foreign marriages, it is crucial to check whether English courts recognize a foreign decree. If English courts recognize the foreign decree then parties are free to remarry in England and Wales, and no English divorce is necessary. If, on the other hand, the foreign decree is not recognized, the parties are still married and they will need to petition for a divorce through English courts, in which case financial orders can be made in the normal way.
With increasing trends of cross-border marriages, such marriage disputes are bound to gain importance in the future. Divorce matters may involve complex international legal issues; therefore, it is strongly recommended that you seek specialist legal advice during early stages of relationship breakdowns about where the divorce or other family proceedings should take place. Another option would be to enter into agreement at Pre-Nuptial stage to state exactly which jurisdiction and choice of law applies during marriage breakdowns.
Maxwell Alves Solicitors