24 July 2014
If Cheryl Cole Gets a Divorce, Which Country Has Legal Jurisdiction?
A number of gossip columns this week speculate on where the newly-wed Mr & Mrs Fernandez-Versini will base themselves and raise children, with the couple reporting that Cheryl has agreed with her new hubby that any future children will be raised in France.
Any couple’s links with different countries, whether through nationality, citizenship, ownership of property or residence there, can mean that more than one country has jurisdiction to deal with any legal proceedings should a relationship fail.
As the law in respect of divorce, financial settlements and children can vary significantly between countries, which country deals with any family law proceedings can be very important, and the cause of significant divorce disputes, before discussion even starts on how financial assets or time with the children should be divided.
There are a number of international laws which govern what links a person must have with a country before they can start family law proceedings there, and which try to establish a hierarchy in the event (as is common) that a couple have the necessary links with more than one country.
Sometimes, this can be a ‘first past the post’ system, meaning that wherever divorce proceedings are first started will be where they continue, other times it can be about where a couple have last lived together as man and wife, or where they are “habitually resident”; (which basically means, where they usually live).
There are many factors which any couple with international links must take into account when considering which country to issue divorce proceedings in if they separate or disagree about children arrangements. This can include what the outcome will be under each of the different laws, where it will be most practical to attend Court (this includes consideration of travel costs and the language spoken in each Court), and where assets are located, to ensure that implementation can be enforced.
For example, if Cheryl did agree to raise children in France, this could mean that should she wish to return to England or America for her career, she would not be allowed to take any children with her; if Jean-Bernard did not agree and it may well mean that in the event of a divorce, their financial assets would be divided under the French “community property” regime, rather than the discretionary system which applies in England & Wales. The difference can run into millions of pounds in certain divorce cases.
Jurisdiction is a very technical area of law, and the success of a request that a particular Court deals with the divorce case often depends on the correct factors being put forward in legal argument. It is one area of family law where there really is often little substitute for expert legal advice, and people can feel severely disadvantaged if they are involved in divorce proceedings which are taking place far away from their usual home.
Cara Nuttall is a Family & Divorce Solicitor at Slater and Gordon Lawyers in Manchester.
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