People may be surprised to learn that the United Kingdom does not have a unified legal system. England and Wales share the English legal system. Scotland has its own legal system. So too does Northern Ireland.
So, if you are an expatriate or a foreign national living in England and Wales, will you be able to bring family proceedings, for example to end a marriage or civil partnership, in respect of financial/property and pension issues ("finance") or about children here?
The position is somewhat complicated but in essence it depends on whether the English Court has jurisdiction (that is, is able as a matter of law) to deal with the Court proceedings. Such jurisdiction depends on you and/or the other party having a specific connection to England and Wales, which may be a connection based on either "Domicile" or "Habitual Residence" or a connection which gives rise to the Court's "Residual Jurisdiction". It is possible for a party to have a connection under more than one option.
Assuming that jurisdiction does exist, will it be beneficial for an expatriate or a foreign national to have their proceedings in England and Wales? Again the position is somewhat complicated and, where the option exists, independent legal advice should be sought. Non-exhaustive factors to bear in mind for either an expatriate or a foreign national will include:-
- Possible language difficulties if Court proceedings are conducted in an overseas jurisdiction
- Uncertainty of outcome
- The possible "ring fencing" of assets that may take place in an overseas jurisdiction but not in England and Wales
- Cultural differences
- The pro-female perception that is held about the English Courts
- A greater willingness on the part of an overseas Court to uphold or enforce a pre-nuptial agreement
- The legal costs which may be greater or less than would be incurred in England and Wales.
For further information regarding any matters arising from this article, please telephone
Martin Chambers of Bakerlaw on 01252 733770 or email him (martin.chambers@bakerssolicitors.com).
Martin Chambers offers initial advice in respect of many aspects of family law on a totally free of charge and no obligation basis. He has substantial experience of acting for expatriate clients in connection with English Court proceedings regarding divorce, civil partnership dissolution and other relationship breakdown, finance and children issues. He has also acted in a significant number of matters where one, other or both parties are foreign nationals.
DISCLAIMER:
We have tried to ensure that the information in this guide is correct at the time of publication. It may be subject to change without notification. The matters discussed in this guide are by necessity brief and comprise summations and introductions to the subject referred to.
The content of this guide should not be considered by any reader to comprise full proper legal advice and should not be relied upon.
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