International divorces: The complex web of multi-jurisdictional battles
By Amy Langford
Amy Langford unravels the complexities of international divorces, illuminating the nuanced legal challenges involved.
For high-net-worth and celebrity couples, divorce is rarely a smooth process. Large numbers of assets, substantial finances, and shared businesses, to name but a few, simply add levels of complexity to the usual suspects like pensions and property that separating couples have to split.
The seperation of English actress Sophie Turner and American singer and actor Joe Jonas has been in the headlines since Jonas filed for divorce in Florida and subsequently announced on social media that they were heading their separate ways.
Turner and Jonas reportedly have a watertight prenuptial agreement in place, which will help to ensure that there is less acrimony over finances and assets.
In many US States, prenuptial agreements are legally binding. As such, having one in place can be extremely useful should the marriage comes to an end down the line. A prenuptial agreement lays out the ownership of belongings, including money, property, and assets, at the beginning of the marriage. It can also be adapted as situations change over time, which is particularly relevant should the couple have children, as in the case of Turner and Jonas.
Prenuptial agreements are not legally binding in England and Wales, so the couple made the agreement in the US before they wed.
The involvement of the media in their divorce proceedings is likely to have made matters more dramatic and difficult for Turner and Jonas than might otherwise have been the case.
Nevertheless, there are some complications involved that have caused tension and strain, namely the international element.
What celebrity divorces like Turner and Jonas’ highlight is a stark reality for many divorcing couples, more than we may think. The issue of having two potential jurisdictions where the divorce could be processed is something some couples do have to manage, and this can be problematic for even the friendliest of ex-partners.
Whilst Joe Jonas petitioned for divorce in the US, Turner reportedly wanted matters to be handled in England, where she was based whilst filming and where the couple and their two young daughters had decided to settle.
International divorce happens when a separating or divorcing couple have valid connections to more than one country. This could be because a couple has emigrated from the UK, or the parties may be living in different countries for work or family reasons, or the parties are of different nationalities. Where a divorce is processed can affect the outcome as divorce laws vary from country to country. The forum for the divorce then becomes the first step and must be decided before any other matter can progress.
These types of divorces tend to be called multi-jurisdictional divorces and are unlikely to be smooth, as evidenced by Jonas and Turner’s proceedings so far.
There are several factors that will be taken into account when deciding which country has jurisdiction. For example, the habitual residence of the couple, the domicile (which can be different to the habitual residence), the nationalities of the partners and the country in which they were married.
In short, there must be a valid connection to the country to which the couple wish to commence divorce proceedings. As such, it is crucial for legal advice to be sought in each jurisdiction before making a decision on where proceedings will take place.
Divorce processes differ from country to country and one country may be favoured by one party, for example because the outcome of the financial matters would be better for them.
Prior to the UK leaving the European Union, if a couple wished to start divorce proceedings within the EU, the process would be undertaken in the country where the divorce application was successfully filed – this was known as the ‘race for jurisdiction.’
However, since Brexit, the country with the closest connection to the couple will be awarded jurisdiction should there be a disagreement between the couple. All decisions about the divorce will then be made using that country’s laws.
In the case of the Turner and Jonas divorce, further complications arose when Sophie Turner reportedly spoke of her intent to file in England. She claimed that England is the permanent residence of the family and where they intended to settle and raise their children.
Turner subsequently filed a lawsuit in New York citing the child abduction clauses of the Hague Convention as Jonas allegedly refused to return their daughters to England or give up their passports.
The Florida Court ordered both parents to remain in New York for their divorce proceedings.
Although the UK and the EU have come to an agreement on how international divorces will be handled, matters are different if estranged spouses are individually wanting to file in England and Wales, and the United States.
Child abduction is often a misused term and can be misleading. In the context of family law, child abduction relates to if one parent, or someone with parental responsibility, removes a child from the other parent or the jurisdiction without permission. It can also be related to unauthorised retention, for example refusing to hand over passports.
By claiming Jonas had wrongfully detained their daughters in the United States when Turner had specifically requested, they be returned to their alleged home country England, further complications were brought into their divorce proceedings.
Child law in divorce can be emotionally and legally stressful at the best of times, but when two different countries are involved, matters can quickly become convoluted.
In divorce proceedings, if the parents cannot decide on where the children should reside, the Court will likely make a choice.
Relevant factors will be brought into the decision-making process, including:
- Country of habitual residence – where the children are regularly living,
- Country of domicile – which country is the permanent home,
- How feasible it is for children to travel between two different countries to have time with each parent.
There are a number of other factors the court will consider when considering a where a child should live which is why specialist advise is always recommended. However ultimately, when it comes to children, should the ex-partners not be able to come to an agreement, the focus of the Court will be the best interests of the child.
For parents who want to live in two different countries after they separate, who the children will primarily live with can be a battleground. Shared care of children may well be unrealistic for some couples because of the geographical challenges and the disruption travelling between countries would cause to the children.
Seemingly the preserve of the celebrity and super-wealthy divorce, multi-jurisdictional divorces are more common than we think. The role of an expert family lawyer is essential in helping couples through the difficulties of an international divorce, particularly for high-net-worths who have more complex financial needs.
Amy Langford is a Partner at Stowe Family Law