Our News
England Is Best Place For Vulnerable to Divorce- 17/11/2010
According to research carried out by West Midlands law firm FBC Manby Bowdler LLP, the financially most vulnerable person in a divorce, who is most often a woman, gets a more generous settlement from the English legal system than they would in another country.
In a review of recent international divorce cases, FBC Manby Bowdler found that decisions of the courts in England and Wales, where discretion is allowed, tended to be more generous than in other countries with a more rigid system of separating matrimonial assets.
English and Welsh courts will take into account all wealth, including pensions and overseas trusts in the settlement. Many overseas courts ignore such assets, if they fall outside the fixed criteria applied in that country.
“Choosing where to divorce can have a significant effect on the outcome of any settlement, as long as there is no pre- or post-nuptial agreement in place,” says Elizabeth Cleverley, partner and head of family law in FBC Manby Bowdler’s Wolverhampton office.
“English Courts have discretionary powers to look at each case on an individual basis and determine what is fair. However, many other jurisdictions have a fixed formula for dividing up the marital assets.
“Due to the increasingly global nature of business and relationships, many more couples now have international links and therefore a choice of court systems if they want to divorce.”
According to Mrs Cleverley, living or working overseas for a number of years, or just simply owning a property abroad, may now be enough for court to accept a divorce case.
She says: “The right legal jurisdiction in which to determine a divorce settlement is decided by nationality, residence, domicile and significant business interests, and, in Europe, is governed by a convention known as Brussels II.
“However, although a court can choose not to accept the case if another jurisdiction is considered to be more appropriate, mostly the courts tend to go by whichever court is first seized of the matter, although this can be challenged.”
According to Mrs Cleverley, this means that, where they can, the richer parties, which tend to be husbands, often try to persuade an overseas, rather than an English court, to hear a divorce case, as they know the outcome will tend to favour them more.
She says: “This is particularly the case in Spain where a couple have a property in the country and they live there for a good proportion of the time, as the settlement for the wife is likely to be less generous. In Scotland the courts have much less discretion than in England and Wales, and have to divide the marital assets according to a pre-determined formula.”
Even when divorce proceedings have taken place under a non-European foreign jurisdiction, the English courts have taken the power to increase the settlement for the financially weakest, if they deem it to be unfair and to have caused hardship.
Mrs Cleverley says: “In the recent case of Agbaje, a Nigerian couple of dual British nationality who, although they lived in Nigeria, maintained a family home in London, the court overturned an earlier ruling. Wife was awarded £275,000, after initially receiving only a life interest in a property in Lagos (worth about £86,000) and a lump sum of £21,000 from the Nigerian courts. So she was much better off thanks to the decision in the English Courts.
“As a result of rulings such as this, it has never been more important for parties who have international links to take advice on the most appropriate country to issue their proceedings,” concludes Mrs Cleverley.
FBC Manby Bowdler advises on a large number of divorce settlements with international considerations. With 36 partners, FBC Manby Bowdler is one of the largest law firms in the West Midlands. The firm has offices in Wolverhampton, Willenhall, Telford, Shrewsbury and Bridgnorth.