The biggest change to divorce law in 50 years came into effect in England and Wales on 6th April 2022 with the introduction of no-fault divorce. Formerly, family law practitioners attempted to take the heat out of acrimonious proceedings by encouraging their clients to take a more conciliatory approach or using anodyne examples of unreasonable behaviour in divorce petitions.
Following the case of Owens v Owens, in which the examples of the petitioner’s husband’s behaviour were considered to be too mild by the court, there followed an arduous period where practitioners encouraged clients to inflate their examples of unreasonable behaviour to avoid such a predicament.
Over the years, proposals for a no-fault divorce system were repeatedly considered by successive governments who preferred to maintain the status quo. However, following the Owens case in 2018, the Supreme Court asked Parliament to intervene and reconsider the law. But what about other jurisdictions? Is England and Wales a frontrunner in the no-fault divorce race?
Malta, China, Canada and Australia are just a few of the countries where no-fault divorce is part of the legal system. California, for example, was the first US state to allow no-fault divorce, which has been in place since 1970. Here, before no-fault divorces, spouses could, and did, easily make false allegations about the cause of the divorce. The spouse making those allegations could then gain a financial advantage, whilst the falsely accused spouse was punished financially and reputationally. With the introduction of no-fault divorce, it placed spouses on level ground and enabled them to keep the reason for the divorce private.
Of the 50 US states, 17 allow no-fault divorces, and in the 33 that remain, spouses can file for a no-fault divorce or choose to apportion blame, reasons for which vary between states.
What is clear in all these jurisdictions is that there has been a move away from the state as the judge of whether a marriage should be dissolved and towards an approach that supports marriage as a partnership based on consent. Therefore, if one party to the marriage removes consent, it should be ended. In legal terms, this is a practical move toward an administrative approach with no or minimal scrutiny against extrinsic standards, such as fault.
In Germany, Colorado and California, applications for divorce are seen as conclusive proof of the breakdown of the marriage. However, it is still possible to contest a divorce because of the lack of jurisdiction, validity of the marriage, fraud/coercion and procedural compliance. Such challenges are not about whether the grounds for divorce have been satisfied but that there is no marriage to dissolve, or the court has no right to dissolve it.
In Spain, Sweden and Finland, respondents can informally indicate their opposition to the divorce petition by how they complete the forms, although this has a purely symbolic effect.
None of them has specific provisions to allow the respondent to register their wish to remain married.
No fault divorce has been available in France since the 1970s and is the most popular method for divorce (over half, according to official statistics). However, France went further than England and Wales and, in 2016, legislated that for non-contested cases, couples were no longer required to attend any form of hearing or involve the court at all. Rather, the couple, together with their legal advisers, draw up an agreement which a notary then approves.
Despite some overlap between jurisdictions, there are many reasons other countries, such as Australia, Canada, France and parts of the US, are not as desirable to start a divorce to some individuals as the UK. London’s attraction is its worldwide reputation for awarding generous payouts to the financially weaker spouse, predominately women. Typically, awards made in other jurisdictions tend to be more limited. Judges in England and Wales have generous discretion when deciding how matrimonial assets should be shared.
Prompt action to start divorce proceedings in someone’s preferred country is vital because it is hard to switch to another jurisdiction after the process has begun. Wealthier clients with complex financial arrangements and who have ties to more than one country often have more choice about where to divorce. Someone who lives in Germany, for example, but was born in the UK and operates out of France might file for divorce in any of those jurisdictions.
However, there are traps. For most European countries, the criteria for filing for divorce include having a physical presence within that country for a specific period before beginning any proceedings. Even if a spouse files for divorce in one jurisdiction, it doesn’t necessarily mean the case will be heard there. Within no-fault divorce, a jurisdictional issue is one reason an application can be challenged, and it is not uncommon for spouses who do not wish to be divorced in England or Wales.
Expert International Divorce Law Solicitors in the UK
Our specialist Family Law team conducts cases with international elements, particularly cross-border divorce matters involving divorce proceedings in the UK where one party may have an international connection. Perhaps you are a French or German national living in England, and you are considering a divorce in the UK or have received court papers from the UK, you should take advice at the earliest opportunity and speak to our top-rated Family Law team today by calling 0330 107 0107 or request a callback.
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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