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DIVORCE ABROAD
When a couple can be divorced in more than one country serious legal problems can develop. British nationals who live abroad can decide whether to be divorced at home or abroad. What matters is where it makes most sense for them to be divorced, and they should work out which jurisdiction is equally fair to both parties.
One of the factors that will determine where the divorce takes place is who puts a petition in first. This will carry some weight when everything else is finely balanced. So if there is jurisdiction in Britain and another country and you would be better off in Britain, start proceedings quickly.
But if the English courts would favour the husband more than the wife, a judge would be likely to tell them to use the jurisdiction that would be fairest to both. It creates a bad impression on a judge if you, as petitioner, have deliberately opted for the jurisdiction most favourable to you.
One English woman, who had lived in France and was married to a Frenchman, decided to file her petition in the UK. Her husband was able to have the proceedings stopped completely, however, because the judge believed that justice would be served better in France.
An American couple who were married in Italy but had lived in the UK for six years and wanted to divorce could have their case heard in any of the three countries. They could go to the States because they were still domiciled there (in the sense that that was where they came from and where they were both likely to die), but they could also use the English or Italian courts because in the first instance this would their country of residence and in the second this would be where their assets were. However, even if they had lived in Britain for a few years, if most of their assets were still in Italy it would be more sensible for the divorce to take place there.
Under Moslem law a man divorces his wife simply by saying ‘I divorce you’ three times, and his liability to his wife is only five gold coins. That is patently unfair for a British woman or, say, an Iranian or an Iraqi living in Britain. While the British courts accept the divorce, it does not preclude the woman from gaining some settlement from her husband’s assets in Britain, provided, of course, he has not taken everything he owns out of the country. British courts can make orders for financial provision when a divorce or separation has taken place abroad, provided permission has been granted by a High Court judge. The judge will only give the go-ahead if he or she considers that the circumstances warrant it – if, for example, the person making the application now lives in Britain.
When a divorce takes place abroad, provided that it was recognized the country which granted it, it will always be recognized in the UK. This is not always the case in reverse: if a couple were married in a Catholic country (which does not recognize divorce) and they came to live in the UK and subsequently divorce there, UK legislation would only cover them, their dependants and assets in the UK.
We pointed out in Chapter 8 that when assets are held abroad, UK courts have only limited powers to make a husband transfer a share if his assets to his wife, or vice versa, particularly when the money is tied up in the Middle or Far East.
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