When a couple or one of the spouses realizes that the marriage is at a loss they are faced with uncountable dilemmas regarding the steps to take to be able to come to terms with the end of the relationship and move forward.
Breaking up is never easy no matter the circumstances. It involves not only the couple`s feelings but also practical aspects of everyday life, such as where to live, how to split any assets, and how to cope without the other`s financial help or support, and meet all necessary needs. Things only get harder when there are children of the family involved, and the couple must try to find a way to work through their own feelings and cooperate in the best interest of their children.
If either you or your spouse (or both) are Italian but have been living in England or Wales for either 6 or 12 months, you can apply for a divorce under the English Jurisdiction.
But what are the differences between applying for an “English divorce” and an “Italian divorce”?
The most important difference is that whilst in Italy in order to obtain a divorce, you must have been legally separated for 6 months (if the separation was applied for jointly and you do not have any children under the age of 18) or 12 months (in case the separation was contested, or you have children under the age of 18), in England you can apply directly for a divorce.
Another fundamental difference is that whilst in Italy the divorce proceedings (whether joint or contested) include all aspects of the breakdown of the marriage, such as matrimonial relief, financial and children matters, in England, these proceedings are separate.
To make things clearer, in Italy the “divorce” order or agreement will include, not only the matrimonial relief, but also spousal and child maintenance, any provision in respect of the family home, and also all child arrangements.
The application for a divorce in England will not include any issues concerning your finances or children, it will only lead to a conditional order first, and a final order later, that declares the end of the marriage. Financial and Children matters must be dealt with separately.
Although this may seem more lengthy this is not really the case, as proceedings in England are currently much faster than proceedings in Italy. Divorce, financial and children matters (if necessary) can be started together. The timescale to obtain a conditional order (the first step of the divorce) is between 6 to 7 months. If you and your spouse are in agreement in respect of finances, a consent order (a document that indicates the details of your agreement) can be filed with the court and matters can be solved within the same period of time. If you are not in agreement, and it is necessary for the Court to decide in respect of the division of the assets, or any issues concerning the children of the family, contested proceedings are usually resolved in approximately 12 to 18 months.
Does it seem like two different worlds? It really isn`t.
On the 6th April 2022, the No-Fault Divorce came into force in England & Wales. The only ground to a apply for a divorce is now the “irretrievable breakdown of the marriage”, meaning that the parties can now apply for a divorce without needing to justify the end of the relationship. You can apply for a divorce even for the simple reason that you have grown apart.
Not only it isn`t necessary to indicate the specific reason for the breakdown of the marriage, but it is technically impossible to do so. The new system has eliminated any chance for the spouses to blame the divorce on one another.
From this point of view, both systems are similar, as Italian law only allows to use the “fault” of the other spouse during separation proceedings, but the same cannot be done during the divorce.
Avoiding the chance to put the blame of the divorce on one another, helps to reduce the conflict between the parties, speeds the process, and creates more possibilities to negotiate all the other aspects (whether it is issues with assets, or children).
Another similarity is the fact that, exactly like in Italy the only grounds to contest the divorce (only as matrimonial relief) is jurisdiction.
As previously explained, divorce proceedings in Italy also cover financial and children matters. For this reason, when they are contested or include complicated issues due to numerous assets or high conflict in respect of the children, the parties can apply for a partial Final Order in respect of matrimonial relief. If applied for, the partial Final Order cannot be refused by the Court, and once granted the divorce is final and the spouses can remarry. If you are struggling with breakdown of your marriage and thinking about issuing divorce proceedings whether in the UK or in Italy, IMD Solicitors will be in a position to advice on the best course of action and appropriate jurisdiction.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.
F v F - Acted for a German husband in a complex financial remedy matter. He decided to instruct IMD Solicitors after he had lost trust in his previously instructed solicitors and feared that he would not achieve a favourable outcome from the proceedings. The relevant assets were spread across the globe with some located in the UK (including a multi-million pound business), Gibraltar, Spain, Dubai, and Poland. The overall value of assets exceeded £24 million. The husband had been cut off from the matrimonial assets and excluded from control of the business that had been established by his family. The case involved the instruction of numerous experts, for business valuations, Capital Gains Tax reports, and opinions on the enforcement of orders in foreign jurisdictions, and dealing with several applications, including applications for orders to freeze assets, prevent the disposition of assets, for the joinder of parties, and to litigate conduct issues. The final result exceeded the client’s expectations.
L v L - We were instructed by a mother in a complex international children matter. She was required by orders of the UK courts to return the child to the UK from Poland. She had travelled with the child to Poland but, following unsuccessful application to extend her stay there in August 2017, she decided not to return to the UK because the child disclosed sexual abuse by a member of the paternal family and the father. In September 2018, the Polish court dismissed the father’s Hague Convention application for the child's return on the basis of Article 13(b), a decision which the father appealed. In March 2019, the father applied to the UK High Court for an order for the child’s return pursuant to the procedure set out in Article 11(6) – (8) of the Brussels IIA Regulation. Despite the father's unsuccessful Hague Convention application in Poland, the UK court ordered the return of the child. Article 11 does not allow the court of the returning country much discretion. After all of this, the mother instructed IMD Solicitors to apply to discharge the orders of the UK Court for the return of the child. Even in the face of the fact that most applications to discharge such return orders fail, we succeeded. We are currently awaiting a decision in the UK courts on a further application for the transfer of jurisdiction to the Polish courts where the mother resides with the child.
G v P - We represent a Spanish mother in respect of an urgent application for a Child Arrangements Order and Specific Issue Order in the UK seeking the relocation of the child to Spain. This was after the return of the child to the UK under Hague Convection proceedings which this mother lost in Spain.
She was asking for an order for the relocation of the child back to Spain and an urgent interim Child Arrangements Order to allow her to see the child pending the final outcome of the UK proceedings. IMD successfully argued that, regardless of the return of the child to the UK under the Hague Convention, the mother should be allowed unsupervised overnight contact with the child. We were delighted to be able to secure her contact with the child for Christmas and she said that it was the best Christmas gift she could have wished for. The outcome of the application for the relocation is pending.
S v V - We currently represent the father in Child Arrangements Order proceedings issued by the mother in relation to variation of a UK order made in the face of numerous other international proceedings. He is an Italian National who has been living in France for the last 20 years and the mother is a Lithuanian national. The child is now 11 years old and proceedings concerning the child have been ongoing in various jurisdictions for the majority of the child`s life. Contested divorce proceedings including child arrangements took place in Monaco. The French Court and authorities were also involved, and various proceedings had been ongoing between parties since 2013 in France and Monaco.
The parties’ divorce was pronounced in Monaco. Thereafter, in December 2020, the mother submitted an application to relocate to England with the child, and the relocation took place in June 2021. Upon relocation, the she lodged a child arrangement order application, seeking to register a judgment made in Monaco and to vary the same in respect of the contact arrangements between the father and the child. The father seeks for the child’s return to Monaco.
Due to the parties’ mutual allegations and the associated international elements, various authorities and courts that have been involved in the case, the local authority has become involved with the family and a guardian has been instructed to represent the child in the UK proceedings. At present, these proceedings in England are ongoing and the outcome of the professional reports regarding the family are awaited.
P v P - We have acted for the Respondent Husband in relation to the financial remedy proceedings in the UK. The parties had various assets in the UK and Romania consisting mainly of the portfolio of properties but conduct issues were raised by the Wife due to a business of the Husband over which she had lost control and her allegations of dissipation of assets. The value of assets excluding the business were in a region of £3 million.
K v K - We act in financial remedy proceedings for a wife who is a Polish national. The matter's complexity mainly comes from a dispute between the parties around land in Poland. Its value was initially in dispute but was then assessed by a joint expert to be in the region of half a million pounds. The total assets in this case are estimated to be worth over £1 million. The land in Poland is a subject to contract with a third party and is being leased as a photovoltaic (solar) farm. The division of the land to achieve an equal share of the assets is complicated due to the contract in place and plans for the future use of the land. Currently the parties are awaiting a final hearing but efforts are being made to reach a settlement with the aid of alternative dispute resolution and in order to save the parties money and avoid further delays.
R v O - We acted pro bono and worked together with a law firm in Poland to ensure that the Costa Rican Mother regains access to her child. The Mother's only child was abducted from the UK in 2014. The Mother was successful with the abduction case and the UK family courts ordered the return of the child. The orders were recognised in Poland but unfortunately due to various issues with the Mother's immigration status and court's delays in Poland, the orders were never enforced. The Mother was facing removal from the UK and prospects of never seeing her child again. We have corresponded with various courts in Poland dealing with international abduction matters and we decided that an application for contact should be issued rather than any proceedings for further enforcement of the orders, as the Mother had not seen the child for around 7 years. At the same we secured the Mother's stay in the UK making successful outside of immigration rules application to extend her stay. We now receive regular photos from the Mother with her daughter, as face to face contact is taking place. We helped to secure an order of the Polish courts for the Mother to see the child regularly in person, whilst when she instructed us she was facing a prospect of never seeing her child again and being deported to Costa Rica.
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