Family law questions answered: what to consider when deciding whether to divorce in England and Wales

In this new series of articles, ‘Family law questions answered’, the family team at Penningtons Manches Cooper provides practical answers to some of the tricky family law issues facing individuals and families. This first article focuses on the factors that make England and Wales an attractive location for divorce, particularly for internationally connected and high net worth families.

Is England and Wales the right jurisdiction for my divorce?

Possibly. For many high net worth individuals and families with international connections, England and Wales may be just one of several possible jurisdictions available to them for divorce and financial proceedings. Multiple factors come into play when considering which jurisdiction is best for you.

When international families have options as to where to divorce, this is often referred to as ‘jurisdiction shopping’ or ‘forum shopping’.

What is jurisdiction shopping in divorce?

‘Jurisdiction shopping’ refers to the process of deciding where to start divorce proceedings when more than one country has the legal authority to deal with the divorce.

The choice of jurisdiction can have a significant impact on the financial outcome of a divorce, making early legal advice essential. Different jurisdictions have different criteria when considering if individuals qualify for divorce in that jurisdiction.

Why is England and Wales a popular jurisdiction for high net worth divorces?

England and Wales has long been regarded as an attractive forum for international and high net worth divorce cases because of the flexibility of its legal system.

Unlike some jurisdictions that apply fixed matrimonial property regimes or formulaic asset division rules, the courts in England and Wales have broad discretion when determining financial settlements.

Rather than applying a predetermined formula, judges assess the specific circumstances of each case and seek to achieve a fair outcome based on the family’s overall financial position.

This flexible approach can be particularly beneficial where there are:

• complex asset structures;
• family businesses;
• trust interests;
• international investments;
• significant inherited wealth;
• cross-border financial arrangements;
• an ongoing need for financial support.

The courts also have a robust approach to non-disclosure, with strict penalties and consequences.

How are assets divided on divorce in England and Wales?

The starting point is usually equality.

In the landmark case of White v White [2001], the court confirmed that there should be no discrimination between the contributions of a ‘homemaker’ and a ‘breadwinner’.

This means that:

• financial contributions are valued equally to non-financial contributions;
• assets built up during the marriage will often be shared equally;
• the court recognises that both parties contribute to the success of a marriage, albeit in different ways.

A key principle of English family law is that assets accumulated during the marriage (‘matrimonial assets’) should generally be shared between the parties.

Whilst equality is the starting point for the division of assets, the court retains flexibility to depart from an equal division where fairness requires it, taking into account factors such as:

• the parties’ financial needs;
• the source of assets;
• whether wealth was acquired before the marriage or after separation;
• the overall circumstances of the family.

For high net worth families, understanding the distinction between matrimonial and non-matrimonial assets can often be a critical issue.

How does spousal maintenance work in England and Wales?

Unlike some jurisdictions, there are no fixed rules that determine whether spousal maintenance should be paid or how long it should last. The court considers what is fair in the circumstances of the case.

Factors considered include:

• the length of the marriage;
• the standard of living enjoyed during the relationship;
• the parties’ income and resources;
• future earning capacity;
• financial needs and obligations, including the needs of any minor children.

The court’s ability to tailor maintenance orders to the family’s circumstances is another reason why England and Wales remains attractive to many international families.

Are pre-nuptial agreements enforceable in England and Wales?

Pre-nuptial agreements are not automatically binding under English law. However, the courts are increasingly willing to uphold properly prepared nuptial agreements.

When considering whether prenuptial agreements will be upheld, the court will consider several factors, including whether:

• both parties entered into the agreement freely;
• each party understood the implications of the agreement;
• appropriate legal advice was obtained;
• there was full financial disclosure;
• it would be fair to hold the parties to the agreement.

While such agreements can carry significant weight, the court retains ultimate discretion and may depart from their terms if fairness requires it. With international families the court will also give consideration to the circumstances in the jurisdiction where the agreement was entered into, whether it would be upheld in that jurisdiction, and whether the above criteria would have been met.

Can I make a financial claim in England if I got divorced somewhere else?

Under part III of the Matrimonial and Family Proceedings Act 1984, the court may, in certain circumstances, grant financial relief following a divorce that has taken place overseas. The applicant would need to meet the specific criteria.

This is a highly specialised area of law, but it can provide an important route to redress where an overseas settlement has not adequately addressed a party’s financial needs.

Conclusions

For high net worth individuals and internationally mobile families, the choice of jurisdiction can have a significant impact on the financial outcome of a divorce. England and Wales remains an attractive forum because of its:

• flexible and discretionary approach;
• strong emphasis on fairness;
• recognition of both financial and non-financial contributions;
• robust disclosure requirements;
• ability to deal with complex international wealth structures;
• sophisticated approach to nuptial agreements.

Where there is a choice of jurisdiction, obtaining specialist advice at an early stage can be critical in ensuring that legal strategy supports wider personal, family and financial objectives.

This article was co-written by Ezgi Sahbaz, paralegal in the family law team.