Where both England and a country outside the EU could entertain divorce proceedings the position is less clear cut and the English court will carry out a balancing exercise to determine in which jurisdiction it would be most convenient and fair to allow the divorce to continue. These arguments centre on the strength of the family’s connection to each country in terms of time spent in each place, where property is held and other cultural ties.
These arguments don’t generally specifically refer to money but they are almost invariably driven by financial considerations. In the case, for example, of a disagreement as to whether an American man and his English wife should divorce in Britain or in the US, there may be a prenuptial agreement that would be given full force in the US but might be given scant regard by an English judge. Thus the argument about the correct jurisdiction will centre on whether the family is more English or American but the undercurrent will be the knowledge on both sides that the winner of that argument will get the financial outcome they want.
The decision in the Malta referendum means that those expats living there will have to think carefully, in the event of marital breakdown, as to whether they should divorce there. Those couples join international couples everywhere (save the Philippines, the one country left where divorce is not possible) in having to consider the prospect of jurisdiction shopping if their marriage comes to an end.
Joe Vaitilingam is a partner at international divorce specialists Hughes Fowler Carruthers.
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