There are many factors to consider when divorce proceedings are undertaken by a couple living across several jurisdictions. Where to divorce, spread of assets and tax legislation are a good place to start
There are increasing numbers of high net worth, international families that have the advantage of owning assets held in various jurisdictions which - while the family remains united - promote a comfortable and accessible standard of living.
Often, international families, will hold properties in the name(s) of offshore companies where one would not necessarily want to have a holiday home. Amazingly, in the context of litigation from a divorce, knowledge is often denied of well-used holiday homes, as husbands (traditionally the high earners) seek to diminish their asset base.
The spread of assets, together with the fact that an international businessman may be living in a jurisdiction in which they are not domiciled, need considerable thought when divorce is being contemplated.
Where to divorce?
In most situations, the paying party will wish to minimise the monies they are paying to the receiving party. The diminution of assets is one way to try and achieve this. Different countries treat the level of the award to be made in different ways. The amount of money paid may, to a greater extent, be affected by the jurisdiction in which divorce proceedings are commenced and concluded. It is very important for an individual to check the likely level of award they may expect to pay to their spouse in each of the competing jurisdictions.
Top Tip: If you believe that you might qualify to petition for divorce in different, competing jurisdictions, speak to your friends and obtain the name of a good lawyer in both jurisdictions and check your position. In the area of competing jurisdictions, speed of advice and the speed of actually issuing divorce proceedings, may be vital as is illustrated below.
Brussels II, namely the Brussels Convention of 1998 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (number 1347/2000) came into force simultaneously across 14 EU jurisdictions on 1 March 2001. For the first time, the jurisdiction for a divorce in countries such as France, Spain, Italy, Portugal and the Republic of Ireland became identical. However, while the jurisdiction - the ability to petition for divorce in any particular given country falling under Brussels II - was identical, the awards that could be made to spouses in various countries who had signed up to Brussels II remained very different.
Prior to the commencement of Brussels II, jurisdictional disputes were litigious and expensive, now domestic courts are required to declare that they have no jurisdiction to deal with a case of which another member state has jurisdiction. Take for example, the recently reported case of C v C (Brussels II: French Conciliation and Divorce Proceedings)  EWHC 1959. In this case the parties had married in August 2000 at a registry office in London and then had a religious ceremony in France. There was a pre-nuptial agreement stating that all matrimonial litigation should take place in France. They separated in May 2002 and the wife took the children to live with her at a house that the parties had purchased in Nice. In January 2003 the husband instituted a divorce process in the Tribunal de Grande Instance de Nice by making a Requite Initiale. The Tentative de Conciliation, as required by the French Civil Code and Procedural Code, was not attended by the wife, who sought to have the husband's process dismissed. In June 2004, the French court gave the husband permission to proceed with his divorce. The wife appealed that Order to the Cour d'Appel d'Aix en Provence.
On 8 January 2004, nearly a year after the husband instituted the divorce process in the Tribunal de Grande, the wife issued a divorce petition in London. The husband in his Acknowledgement of Service Form to that English petition, challenged the jurisdiction of the English courts on 10 January 2003. He argued that the French court was first 'seized'. The district judge hearing the application in the English court, referred the husband's challenge to the High Court and stayed the wife's petition, pending receipt of such evidence. On the 6 May 2004, the husband issued his Assignation en Divorce in France, which was listed for hearing in September 2004. The English court held discharging the stay on the wife's petition, that the English court was first seized with divorce proceedings and its jurisdiction was established accordingly. The English jurisdiction and the award that the English court may make was more favourable to the wife from a financial point of view, hence the jurisdictional flurry of activity.
Contrast this with the case of R v R (Divorce: Hemain Injunction)  EWHC 2113 (Family)  1 FLR 386. This case is more unusual in that it fell outside the provisions of Brussels II - Denmark not being a signatory country. The decision over jurisdiction fell to be determined by application of domestic English legislation, in this case the Domestic and Family Proceedings Act 1973 and common law. In this case, Munby, the presiding judge, gave useful guidance as to where a 'Hermain', or anti-suit injunction, would be granted, namely only where:
1. England is the natural forum.
2. The pursuit of the foreign proceedings was vexatious or oppressive.
The outcome of each individual case really turns on its individual facts. In this case, the Danish husband and the American wife established their home in England, although they also regularly spent time in Barbados. While both living in the London home, the husband issued proceedings for legal separation in Denmark (a prerequisite before issuing divorce proceedings in Denmark). Some time later, the wife issued divorce proceedings in England. The wife, after delay, was then served with the Danish proceedings. The husband having been served with the English proceedings, disputed the English jurisdiction. The wife obtained a postponement of the Danish proceedings and sought a Hermain Injunction to restrain the husband from pursuing the Danish proceedings. The husband withdrew his application for a stay of the English proceedings, but maintained his challenge to the jurisdiction of the English court. The court granted a Hermain Injunction to the wife requiring the husband to take all necessary steps to 'stay' the Danish proceedings until the English court had ruled on jurisdiction.
Not Just Brussels II
Of course, the issue of which jurisdiction to 'pick' when contemplating a divorce, is not just of pertinence within Europe. In the case of Bloch v Bloch  1 FLR 1, the wife was the wealthy party and succeeded in keeping proceedings in South Africa. This case report sets out in easily digestible form the reasons why the proceedings were so much more advantageous to the wealthy wife, namely:
• The limited powers of the South African Courts to re-distribute matrimonial assets.
• The alleged inability of the South African courts to look behind trusts.
Pre-Nuptials in england and wales
If parties have a pre-nuptial agreement, the wife who historically has been placed in a disadvantageous position by virtue of that agreement may seek to petition in the jurisdiction of England and Wales, if indeed that is where her expatriate husband is based for work purposes and where pre-nuptial agreements are not currently recognised.
However, in the jurisdiction of England and Wales, pre-nuptial agreements are not binding. Recent cases such as K v K  1 FLR 120 mean that the English courts are more prepared to give weight to what the parties have self-regulated by means of their pre-nuptial contract.
In summary, parties divorcing in the jurisdiction of England and Wales, as in other jurisdictions, can no longer absolve themselves from the terms of pre-marital contracts entered into in proper and correct circumstances.
Similarly, the English courts will now consider if the foreign cultural background of the parties was a dominant factor, how the matter would be dealt with in that foreign country in accordance with the decisions in Otobo v Otobo  1FLR 192. In this case, after a seven-week marriage, the husband was ordered to pay £35,000 to the wife, but if he did not grant her a 'Talec' divorce she would receive the sum of £60,000, entitled to under Iranian law, as this was the sum provided for in the marriage contract.
Top Tip: Be careful of letting your lawyer petition for divorce on a basis which may compromise your tax position. For example, if you are non-domiciled in England and Wales for tax purposes, your divorce petition should recite that you are habitually resident in England and Wales and not that you are domiciled, since this may impact on your tax status. Is it worthwhile to have expensive contested jurisdictional proceedings, when you accept that your marriage has broken down and you recognise that you will need to provide a settlement for your spouse? Do not pay the lawyers vast amounts of money if you are going to have to pay your spouse in any event.
Top Tip: Take international tax advice as to the structure of your financial settlement. If you are paying maintenance/alimony, be aware that it will undoubtedly not be tax deductible. Child maintenance is normally tax deductible. There are normally reciprocal tax treaties between jurisdictions and the correct recitals have to be spelt out in your financial order. But beware the exceptions. For example, there is no reciprocal tax treaty between England and Ireland. If you are paying maintenance to a spouse who lives in Ireland, you are paying out of net income, and your spouse is also having to pay tax on the income that they receive. Double whammy.
In short, seek legal advice and keep your wits about you.
Pre-nuptial agreements - a checklist
1. Did the parties to the agreement understand the agreement?
2. Did they both have proper legal advice as to its terms.
3. Was the signing party put under pressure to sign?
4. Was there full disclosure as to financial assets?
5. Were the parties under any other pressure?
6. Did the parties willingly sign the agreement?
7. Did the 'powerful' party exploit a dominant position, either financially or otherwise?
8. If applicable, was the agreement entered into in the knowledge that there would be a child.
9. Has any unforeseen circumstance arisen since the agreement was made that would make it unjust to hold the parties to it?
10. Are there are any grounds for concluding that an injustice would be done by holding the parties to the terms of the agreement?
Spread of assets and issues of domicile need considerable thought in the situation of divorce.
Parties divorcing in the jurisdiction of England and Wales can no longer absolve themselves from the terms of pre-marital contracts.
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