Wednesday, January 4, 2012
It is important to be aware that the jurisdiction of the court in England and Wales does not include Scotland or Northern Ireland for divorce proceedings. Indeed Scotland is a completely separate jurisdiction based on Roman law rather than English common law.
In England and Wales the courts will accept jurisdiction for a divorce or an application for financial settlement where a foreign divorce has been declared in what may be surprising circumstances to some US attorneys. It is possible to issue a petition for divorce:
(a) if one of the spouses is domiciled in the United Kingdom even if both parties are living in the United States; or
(b) if both spouses or one spouse has been living in England or Wales for the past 12 months or more. In the case of an application for financial settlement where the divorce has been declared abroad the leave of the court is required.
Once jurisdiction is established in England and Wales it is the overriding objective of the court to ensure the case is dealt with expeditiously and fairly.
There is one ground for divorce which is irretrievable breakdown. This is proved by establishing one of five facts which are that the other spouse has committed adultery or behaved unreasonably or deserted the petitioning spouse for two years or more or alternatively that the spouses consent to a divorce after two years separation or that they have been separated for five years. Provided that the responding spouse does not wish to defend proceedings the procedure is dealt with on paper, the petitioning spouse filing a sworn statement in place of giving evidence.
A petition for divorce in England and Wales cannot be presented within the first year of marriage. There is no summary divorce procedure.
Despite there being fault attached to the first of the three facts referred to above, beyond obtaining an order for the costs of the divorce ( but not any applications ancillary thereto) it is very rare indeed that the conduct, even bad conduct, of one or both of the spouses will affect the financial settlement. For example if one spouse is committing adultery his or her financial settlement will not be decreased. In England and Wales there is no concept of breach of fiduciary duty although the courts would consider conduct that affects the spouses’ finances in determining a financial settlement. For example, in one case the husband broke his wife’s arm. She was a nurse and this injury prevented her from continuing in her career. This was conduct that was taken into account and enhanced her financial settlement. In another case the husband had gambled away the parties’ savings without his wife’s permission. Again this affected the settlement.
Whilst same sex couples cannot be married in England and Wales they can enter into a civil partnership. Such a partnership is determined using the same proceedings as those set out above for married couples and the points discussed below apply to divorces and the ending of civil partnerships.
In England and Wales the court has discretionary powers when determining financial settlement. Its jurisdiction cannot be ousted even by agreement by the parties. Any financial settlement reached must be approved by the court. Accordingly, a court can reject post divorce settlements if it is not satisfied that they are fair.
Prenuptial settlements are not legal under the law of England and Wales. Until relatively recently they could not be relied upon. It is however the case that the courts will now consider prenuptial settlement when determining financial settlement as evidence as to the parties’ intent and it will influence the financial outcome for the parties. It is however the case that in England and Wales prenuptial contracts are not binding upon the court, although they are increasing in number and the courts are influenced by them.
This was a guest post by Liz Cowell, divorce specialist and Partner at Pannone LLP. For more information on Pannone visit their website http://www.pannone.com/.