One of the hardest things to cope with in a divorce is the length of time it takes to issue proceedings. Under English law a divorce isn’t officially started until a petition is issued by the courts. After sending a petition for divorce to the court, many clients will have to wait a considerable amount of time in what is effectively a queue before the petition is issued by the court to their former partner. Waiting in the divorce queue can affect a divorce in a number of ways, particularly if there is an international element to the divorce.
Family law is experiencing a wave of change and rapid development as it attempts to adapt to a globalised world. Whilst the principles and customs surrounding divorce in England and Wales have remained the same, the make-up of families has changed. The key struggle in this change is jurisdiction: which country should deal with the divorce and why? The law becomes complex and it takes specialist advice to be able to navigate it.
The wait for the petition to be issued is very frustrating for clients who live abroad or have a spouse in another jurisdiction. Where both are allowed to issue proceedings in their respective countries there will be a ‘jurisdiction race’ with only the divorce which is issued first being allowed to continue. The ‘winner’ in the jurisdiction race will have the laws of their chosen country, where they had the petition issued, apply to the divorce – and more crucially in many cases, to the divorce finances. The consequences of failing to win the jurisdiction race are wide reaching and can put clients at a disadvantage. Not only will clients be facing court in a foreign jurisdiction where they may not speak the language or understand procedure, the rules of that jurisdiction may put them at a serious financial disadvantage. It is well known that the divorce laws of England and Wales allow judges a great deal of discretion and in recent years they have used this creatively to assist the financially weaker party in divorce cases. On the other hand, comparable jurisdictions, such as France, have little discretion and are can be very harsh on those whose position is weaker because they have not worked, for example a parent who has sacrificed a career to remain at home with the children.
The key is to seek specialist advice: it really can be the difference between getting a desirable outcome or being in an extremely difficult legal position overseas. Clients need a solicitor who can recognise a potential jurisdiction race early in the case and act accordingly: fast action is needed to make sure the petition is filed quickly, ideally the same day. Once proceedings have been issued, clients are safe in the knowledge that the case will be heard in the UK where get a fair hearing and, hopefully, desirable outcome. Once the petition is issued the divorce then progresses at a normal speed through the courts.
At Grayfords we take a number of steps to make sure our international clients are not disadvantaged by the jurisdiction issues in their cases. We keep abreast of international legal developments so that we can advise clients where they may wish to petition for divorce. We’re also ready to act immediately with a number of same-day appointments available daily. If you think you might be in a jurisdiction race, we’re ready to act now. Call us on 0800 222 9500 for an urgent consultation.
by Lewis Sweeney
This article was written by Lewis Sweeney, a guest blogger of Grayfords.
Lewis is a law student who studies at the University of Westminster.
He is in the process of completing his LLB and has aspirations of becoming a barrister.