Divorcing in England and Wales and how to make sure that financial matters are all dealt with here and not in another EU country
You are a British woman and you live in England – ‘England and Wales’ in terms of legal jurisdiction. Your husband is from Germany, which is another EU country. You have separated, and your husband has gone back to Germany. You want to get divorced, and you want the divorce to take place in England and Wales. Your husband also wants to get divorced, but he wants the divorce to take place in Germany.
Where does the divorce take place – in England and Wales, or in Germany?
For the purposes of this explanation, you could reverse ‘husband’ and ‘wife’, and you could substitute any EU country for Germany (or for England and Wales, for that matter), and the explanation would still apply.
Under EU law, the divorce could take place in either England and Wales or in Germany. The sole deciding factor is where a divorce petition is first issued. If you, our British wife, issue a petition in England and Wales before your husband issues a petition in Germany, the divorce takes place in England and Wales. If your husband issues a petition in Germany before you have issued a petition in England and Wales, the divorce takes place in Germany.
But what about the financial arrangements? Will they be dealt with in England and Wales, or in Germany? Probably, you and your husband won’t need the court to be involved at all, except to make an order by consent once the financial arrangements have been agreed. In a few cases (fewer than ten per cent) the court has to make the financial decisions because the husband and wife can’t agree. In your case, you may have taken advice from lawyers in both jurisdictions and decided that you want the court in England and Wales to make any financial decisions (Note: this does not constitute advice on the relative merits of the two jurisdictions for a divorcing wife).
So, you make sure you get in first with a divorce petition in England and Wales and then, if the court has to get involved in the financial arrangements, everything will be decided in England and Wales, right? Not necessarily, as this interesting article on the Family Law website explains. You may want to take the precaution of making a financial application at the same time as you issue divorce proceedings, even if you don’t think you’ll need the court to be involved in the finances.