More families than ever before have international connections, with stints in various countries for work and family reasons. Kai Whicker, a solicitor in the family team at Stephens Scown LLP in Exeter, explains the impact of a recent international divorce case.
When a couple have lived in different countries, the court has to consider ‘habitual residence’ to decide which country’s laws should be applied in their divorce case.
A recent divorce case illustrates the importance of establishing habitual residence and how a brief stay in another country is unlikely to be sufficient. The case is also a reminder that it is crucial to consider the desired outcome and prepare an appropriate strategy from the outset.
England, Ireland, Australia and St Lucia
In this case the husband was born in Ireland, the wife in England and both were citizens of their respective countries of birth as well as Australia. They met in Australia in 2014 and got married in 2015. The wife fell pregnant in early 2016 and whilst on holiday in England, decided she would like to stay throughout her pregnancy. The couple separated and the husband then returned to Ireland from Australia so he could be closer to their child.
The couple later reconciled and the husband moved to England, taking out a 12 month lease on a property. He then secured a CEO role for three years in St Lucia so they once again re-located together. The marriage broke down again and when the wife was on holiday in England in April 2018, she petitioned for divorce and issued financial proceedings.
Her divorce petition was on the basis of residual jurisdiction (sole domicile). There are, however, restrictions on the financial relief available if the application is made on this basis. She was unable to pursue a claim for maintenance from her husband. She applied to amend her petition to be based on habitual residence instead, but she had returned to St Lucia by this time.
The judge had to consider whether or not the wife was able to establish habitual residence at the time she petitioned in April 2018. As she had simply returned to England on holiday and there was no pre-planned or purposeful relocation, the petition could not be amended and there was no legitimate basis for a maintenance order.
Importance of strategy
Divorce cases with international elements are becoming increasingly common but can be particularly complex. Issuing divorce proceedings on the incorrect basis and failing to consider the appropriate strategy from the outset can have a detrimental impact on the case, causing significant costs and failing to achieve the desired outcome.
Before taking any steps to start divorce proceedings, advice from a specialist family solicitor with technical knowledge and specific experience dealing with international matters should be sought so an appropriate strategy can be considered and implemented.