Because divorce laws vary from country to country, it can often become confusing for couples living abroad or in separate areas of the world when they decide to divorce. Where there is a choice of which country to commence proceedings in, it is vital to take advice at the very outset, because the law in one country may well be more favourable to you, depending on your circumstances. The division of financial assets is something that varies between different countries, even within the UK, and decisions regarding children can differ too. At Kayani Legal Solicitors our specialists have extensive experience in guiding individuals through an international divorce and use a tactical approach to protect your interests.
There is a great deal to consider when contemplating an international divorce, and you will find further information on the subject on our dedicated international divorce page, together with details of how our experts can help guide you through the process.
One party is English and the other Russian. They married in Romania and then moved to a non-EU country for one party’s work, while maintaining assets in England and Romania. Can a jurisdiction clause be included in the parties’ post-nuptial agreement stating that they agree that their divorce is to be dealt with in the courts of England and Wales and/or choice of law provision for the matter to be dealt with under English law? Would the position be different once the UK is no longer subject to EU regulations (ie post-Brexit)?
In cases involving multiple jurisdictions, it may be prudent to seek advice from a local specialist lawyer in each of the jurisdictions with which the parties have a connection as to the implications of a post-nuptial agreement generally and as to jurisdiction clauses and/or choice of law provision specifically.
It is important that a post-nuptial agreement complies with the requirements of the jurisdiction in which the parties seek for it to be recognised. In England and Wales, it must, inter alia, be entered into freely and without duress with each party being afforded the opportunity to take legal advice. Post the Supreme Court decision in Radmacher (formerly Granatino) v Granatino, the court in England and Wales would also have regard to whether the terms of an agreement are ‘fair’.
In order to bring divorce proceedings in England and Wales, the court must have jurisdiction, which, under Brussels II bis, will be determined with reference to the residence and habitual residence of the parties, or, in some cases, domicile.
It is therefore important to consider whether the courts in England and Wales will have jurisdiction in relation to divorce proceedings as, if they do not, it is likely to be irrelevant where a post-nuptial agreement provides for the divorce to be dealt with.
The parties may include a choice of law clause in the agreement, however, if the agreement would not be upheld in the particular law they choose, this may influence the court. For example, in Ipekci v McConnell, the parties stipulated in the agreement that it would be governed by New York law, however, the court found that it would have minimal or no weight in New York. Mostyn J said it would therefore be ‘wholly unjust’ to attribute weight to the pre-nuptial agreement in the circumstances. Jurisdiction clauses are also common, although the effect is unclear, but they can go some way to demonstrating the intentions of the parties.
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