Exploring overseas divorce

Divorce is available in virtually every country in the world, and overseas divorce can often be relevant to family court proceedings in this country.

The relevance can be anything from considerations about where the divorce should take place, to various issues following an overseas divorce.

 

In this article we will look at some of these considerations and issues.

Where the divorce should take place

For most people this will not be an issue, as usually it is only possible to divorce in the country where the parties reside.

But sometimes the parties will have links with more than one country, which will give them the possibility of issuing the divorce proceedings in two or more countries.

One consideration when deciding in which country to divorce may be the particular divorce laws of each country.

Obviously, it would not be possible here to summarise the divorce laws in every country, but an important factor may be whether or not the laws of a country allow no fault divorce, as is the case in England and Wales, or whether they require one party to blame the other for the marriage breakdown.

Another factor that commonly has a bearing upon where the divorce is issued is the difference, or perceived difference, between how the courts in each country deal with financial settlements on divorce.

For example, it is commonly believed that the courts in England and Wales are more generous towards wives than they are in many other countries. This can lead to a race between the parties, with wives seeking to issue divorce proceedings here and husbands wanting to divorce abroad.

Recognition of overseas divorce

Moving on, we come to the next issue: that not all overseas divorces are recognised by the courts here.

Obviously, most overseas divorces, obtained in accordance with the laws of that country, will be recognised by the courts here. But there are occasions when they will not.

Take, for example, a case that took place in the High Court in London in 2015.

In the case a divorce was granted to the husband by the High Court of Malaya in 2014. The wife, however, applied to the High Court here for an order that that divorce be refused recognition in this country, so that she could proceed with a divorce that she had issued here in 2010.

The High Court granted the wife’s application. There were several reasons for this, including that the husband had not told the Malaysian court when issuing his divorce there that the wife had already issued divorce proceedings here (in which case the Malaysian court may well not have allowed the divorce to continue there), and that the wife was not given reasonable notice of the Malaysian proceedings, or a reasonable opportunity to participate in them.

The wife was therefore able to proceed with the divorce here.

Enforcing foreign orders here

Another issue with overseas divorces is that financial orders made by the foreign court will sometimes have to be enforced in this country.

The most common example of this is where one party has been ordered by the foreign court to pay maintenance to the other party, and the paying party lives in this country.

In such a situation if the maintenance is not paid the receiving party will want the courts here to enforce the maintenance order. For this to happen the foreign maintenance order will first have to be registered in the courts of England and Wales. Once this has been done, the courts here will be able to enforce the order in the same ways they could do if the order had been made here.

Financial Relief in England and Wales after Overseas Divorce

The last issue may come as something of a surprise to many, but it is possible for someone who has been divorced overseas to then apply to the courts here for financial relief.

We will not go into the details of these applications, but suffice to say that if certain conditions are met, in particular that one of the parties has some connection with this country, then the courts here can potentially make largely the same financial orders as they could if the divorce had taken place here.

How can we help?

For further information, please see the Divorce page. We also have a Divorce Support Club, to provide support whilst going through divorce.

Walker Family Law are an award-winning family law practice, recognised as one of the leading family law firms in the South West of England with services covering family law & mediation, divorce law, child-law and arbitration.

Please contact us if you require any further information.