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Divorce & Family Law Help
Which Court Should Handle My Divorce?
In certain cases, a couple can file for a divorce in more than one country, and at times, a country may prefer one party over the other. Because of this, choosing where to get divorced can be a pretty important issue.
However, couples who married in the UK, and who stayed and lived in UK most of their lives, that situation does not usually apply. The above situation applies usually to couples who marry in other countries, or couples who come from two different nations, or even British citizens who work outside the UK. In such cases, there is a choice of legal jurisdiction for the divorce.
A case that is usually fought over is the dispute over child custody, when both parents come from Muslim countries. Muslim fathers are often surprised to find that in the UK, mothers usually get custody of the child, which is a stark difference from the laws in their country. In order to ensure fairness, the divorce may take place in a Muslim country.
Another unique situation involves pre-nuptial agreements. In the UK, such agreements are usually not honoured, unlike in most countries. It might be an advantage to one partner to have the divorce be settled in a court that recognises pre-nups.
Court jurisdictions regarding divorces highly affect the outcome of a divorce. Since different courts process cases in varied ways, the result depends on the proceedings of that court. A good example is when a married American couple that has lived in the UK for over a year decides to have a divorce. The husband then issues a divorce petition in the UK, which he is entitled to do, because he has been living in the country for more than a year before filing the petition. Their citizenship does not come into play here, nor does the place of their marriage.
But then, the wife goes back home to the US before any conclusion on the divorce proceedings is decided. She then issues her own divorce petition in the US, which she is also entitled to do, as she is a citizen of that country. When that happens, the English courts will have to settle and decide which of the two petitions should proceed, as there are now two legitimately issued petitions.
Of course, such situations have rules on how they are decided. If the wife’s reason for filing for a divorce petition in the US is due to the fact that the UK courts do not usually recognise pre-nuptial agreements, she would have to apply to the English divorce court to have her husband’s petition “stayed.” Should she be successful, the husband will then be prevented by the UK court from proceeding with the divorce in England. The US courts will then have to deal with the case.
The UK courts base their decisions regarding such situations on a “balance of convenience.” All the facts concerning the marriage will come into play to determine the fairest location of jurisdiction. In the situation cited above, the court’s decision will be influenced by the length of time that couple of has stayed in England, where majority of the couple’s property is located, their children and their whereabouts. After hearing the whole story, so to speak, that is when the English courts will decide where it would be more just to hold the divorce proceedings.
Whenever there is a possibility of a divorce taking place in more than one country, it is usually helpful to consider which jurisdiction will be more favourable to the situation. Different traditions and laws govern every country, so it is best to weigh your options before filing that petition.