Two common reasons are:
(1) ‘forum shopping’ – usually as the wife seeks a more favourable outcome in the English Courts and;
(2) divorce without proceedings in other jurisdictions – usually a husband seeking a quick divorce in another jurisdiction; often via the Islamic Talaq form of divorce. If it is determined that the divorce is outside of the jurisdiction and so not valid in England and Wales, then an alternative recourse is available to the usual application under the Matrimonial Causes Act 1973.
This is considered under section 46 of the Family Law Act 1986. A distinction is made between a foreign divorce involving proceedings [s.46(1)] and those where no proceedings were undertaken [s.46(2)]. The validity of a foreign divorce under Subsection (1) would require one party to be habitually resident, domiciled or a national of that country where the divorce proceedings began. The decision of Mostyn J provides some clarity of this issue; Met v Hat  EWCA 4247 (Fam). Part of the judgment found that the ‘bare talaq’ was valid as both parties had been resident in the foreign jurisdiction for the prescribed period of 12 months.
Under subsection (2), the absence of any foreign divorce proceedings is considered. Essentially, for such a divorce to be considered valid in England and Wales, both parties would have to be domiciled the jurisdiction of the [administrative] divorce or in a similar jurisdiction, most probably in an equivalent Islamic jurisdiction, and at the ‘relevant date’, i.e., recorded date of divorce. Alternatively, if either spouse was habitually resident in the UK in the 12 months preceding the relevant divorce, then this method of divorce will be considered invalid in this jurisdiction.
It should be noted that the 12-month period provides a formality for the test of habitually residence as the ‘settled intention’ of an individual should be clear. The only further requirement in terms of domicile status is essentially whether significant ties remain in a former country of habitual residence. Domicile status additionally provides for a distinction between the self-explanatory domicile of origin and domicile of choice. [see the leading authority of Barlow Clowes International Ltd v Henwood  E – where the husband WCA Civ 577]
A consideration of the status of spouses and ‘forum shopping’ is found in a recent decision of Moor J in Pierburg v Pierburg  EWFC 24 although this relates to a European Council Regulation [No 2201/2003] and so may become an ever more complex area of judicial consideration. The court noted that there were conflicting authorities [Marinos v Marinos  EWHC 2047 (Fam) as opposed to Munro v Munro  EWHC 3315 (Fam)]. Ultimately, Moore J found that the wife had not been habitually resident in the jurisdiction for the requisite period(s) of six or twelve months and had not shown sufficient evidence of intent or otherwise to show that her domicile status had changed from her domicile of origin in Germany – where the husband had initiated divorce proceedings. Hence, the wife’s jurisdictional claim to divorce proceedings in England was dismissed. What follows from this is what alternative courses could the wife seek in pursuit of her financial remedy? This is considered below.
Potential Financial Considerations
Where there has been a foreign divorce, a party might still be able to apply for a financial settlement under Part III of the Matrimonial and Family Proceedings Act 1984, the intention being to alleviate the hardship of a foreign divorce. Unfortunately, under Section 12 (1)(a) of the Act, in order to make the application under Part III there must have been foreign divorce proceedings in that country. If so, an application for financial relief can be initiated.
Then, one of the following criteria have to be met: at the time of the foreign decree, at least one of the parties to the marriage was domiciled in England and Wales, or, at least one of the parties was habitually resident in England and Wales for one year preceding the application or decree, or, at least one of the parties is entitled to a beneficial interest in a property in England and Wales that was once the matrimonial home (in which case the court is confined to dealing with the property in question). Of course, in the absence of a valid married and when a property is being considered, a better course of action would be an application under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 and which may be made by a trustee of land, or a beneficiary with an interest in property subject to a trust of land.
Alex has practised as Chancery and Family Counsel for over 15 years. Before that, he spent 5 years in corporate management and marketing.
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