Which Country’s Law Applies in International Divorces?

In an increasingly globalised world, relationships often cross international borders. When such relationships break down, the question of divorce becomes significantly more complex than in domestic cases. Determining which country’s courts have the authority – or jurisdiction – to handle the divorce is often the first and most critical step.

Choosing between jurisdictions, such as England and Wales versus another country, can dramatically affect the outcome, particularly concerning financial settlements. With different legal systems offering varying approaches to asset division and spousal support, understanding jurisdiction is paramount.

At Maguire Family Law, our international family law team frequently assists clients navigating these complexities, providing clarity on where proceedings should take place and why it matters.

What Makes a Divorce “International”?

A divorce is generally considered international when the couple has connections to more than one country. These connections can arise from various factors, including:

• Nationality: Where one or both spouses hold citizenship.
• Residence: Where the couple currently lives or last lived together (habitual residence).
• Domicile: A person’s permanent legal home, which may differ from their current residence.
• Location of Assets: Where property, pensions, or significant investments are held.
• Place of Marriage: Where the marriage ceremony took place.

Understanding concepts like domicile and habitual residence is fundamental to determining potential jurisdictions.

Why Jurisdiction is Crucial in International Divorce

The choice of jurisdiction is far more than a procedural formality; it can fundamentally alter the financial landscape of the divorce settlement.

Different countries have vastly different approaches to:

Asset Division

Some jurisdictions mandate an equal (50/50) split of marital assets (community property), while England and Wales apply principles of fairness and equitable distribution, considering needs, contributions, and other factors, which may not result in an equal split.

Spousal Maintenance (Alimony)

Laws vary significantly regarding the amount and duration of spousal support, with some jurisdictions being more generous than others.

Treatment of Specific Assets

How assets like pensions, trusts, business interests, or inherited wealth are treated can differ dramatically between countries.

Child Matters

While financial aspects are tied to the divorce jurisdiction, matters concerning children (like custody or contact arrangements) are typically determined by the courts in the country where the child habitually resides. This can sometimes lead to proceedings in multiple jurisdictions.

Procedure and Costs

The speed, cost, and confidentiality of divorce proceedings can vary significantly depending on the country chosen.

High-Net-Worth Individuals

For high-net-worth individuals with assets spread across multiple countries, it’s particularly critical to select the right jurisdiction to protect assets and achieve a fair financial outcome.

How to Determine Jurisdiction in England and Wales

In England and Wales, the court’s authority to handle a divorce (its jurisdiction) is primarily based on concepts of domicile and habitual residence.

You may be able to divorce here if one or more of the following apply:

• When both spouses currently maintain habitual residence within England and Wales.
• Where England and Wales was the last place of habitual residence for both individuals, with one spouse continuing to live there.
• If the responding party maintains habitual residence in England and Wales.
• When the filing spouse has habitual residence in England and Wales and has lived there continuously for at least 12 months prior to submitting the application.
• If the filing spouse is both domiciled and habitually resident in England and Wales, having lived there for a minimum of six consecutive months before filing.
• When England and Wales serves as the domicile for both parties.
• If either spouse maintains domicile in England and Wales (notably, this criterion was introduced following Brexit).

Post-Brexit Changes

Previously, within the EU, the rule often followed was ‘first to issue’, meaning the court where proceedings were first filed usually retained jurisdiction. Since the UK’s departure from the EU, this strict rule no longer applies between the UK and EU member states.

Instead, if proceedings are initiated in England and Wales and another country (EU or non-EU), the English court uses the principle of forum conveniens (most appropriate forum).
The court will assess factors like each party’s connection to the jurisdictions, convenience, location of assets, and potential legal outcomes to decide if England and Wales is the most suitable place to hear the case, even if proceedings started elsewhere first.

The “Race to Court” and “Forum Shopping”

Because the choice of jurisdiction can have such significant financial consequences, spouses may strategically try to initiate proceedings in the country whose laws are most favourable to them – a practice known as “forum shopping”.

This can lead to a “race to court” where each party tries to file first to secure their preferred jurisdiction. Although the strict first to issue rule doesn’t apply to England post-Brexit regarding EU states, speed can still be crucial, as EU member states continue to apply these rules amongst themselves.

You should therefore act promptly and seek expert legal advice if you are considering an international divorce.

Potential Considerations and Challenges

International divorces involve several complexities beyond establishing initial jurisdiction:

• Parallel Proceedings: It’s possible for divorce proceedings to run simultaneously in different countries, requiring applications to stay (pause) one set of proceedings.
• Recognition of Orders: A divorce granted or a financial order made in one country may not be automatically recognised or enforceable in another, sometimes requiring separate legal processes.
• International Prenuptial Agreements: While increasingly recognised in England and Wales, international pre-nuptial agreements may not be upheld if they attempt to dictate jurisdiction improperly or conflict with the laws of the divorcing country.

How Maguire Family Law Can Help

Dealing with international family law requires specialist knowledge and experience. The rules are complex and vary depending on the countries involved and the specific circumstances of the family. Given the high stakes and the potential for strategic “forum shopping,” obtaining early, specialist legal advice is essential.

At Maguire Family Law, our dedicated team provides expert advice on:

• Determining the most advantageous jurisdiction for your divorce.
• Understanding the concepts of domicile and habitual residence.
• Navigating the complexities of expat divorce.
• Securing fair financial settlements involving international assets.
• Handling issues related to child relocation and international contact arrangements.
• Enforcing international financial orders.

If your relationship has international connections and you are contemplating separation or divorce, contact Maguire Family Law for a confidential consultation to understand your options and secure the best possible outcome.

We understand the nuances of cross-border disputes and work strategically to protect our clients’ interests. Call our team on 01625544650, or fill in our contact form.

References

Brodies LLP. (17 December 2021). The ultimate guide to international divorce. https://brodies.com/insights/international-divorce-advice/the-ultimate-guide-to-international-divorce/
Codozasady.pl. (16 April 2020). Jurisdiction in divorce cases with an international element. https://codozasady.pl/en/p/jurisdiction-in-divorce-cases-with-an-international-element
European Commission. (n.d.). Divorce and separation – European Commission. https://commission.europa.eu/strategy-and-policy/policies/justice-and-fundamental-rights/civil-justice/family-law/divorce-and-separation_en
Hague Conference on Private International Law. (n.d.). Divorce section – HCCH. https://www.hcch.net/en/instruments/conventions/specialised-sections/divorce
Journal of Development and Social Sciences. (2025). Cross border issues in international divorce: A legal understanding, 6(2), 123-145.
Smart, A. (1 January 2024). Global Divorce Statistics of 2024. Advokatsmart. https://www.advokatsmart.no/news/global-divorce-statistics
UK Government. (n.d.). Family law disputes involving the EU: Guidance for legal professionals. https://www.gov.uk/government/publications/