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News & Knowledge

UK: International Aspects of Family Law

21st December 2016
Jane Tenquist, Myerson

MSI's Northern UK law member Myerson explains the aspects of international divorce and pre-nuptial agreements.

In 2015, 27.5% of births in England and Wales were to mothers born outside the UK, according to the Office of National Statistics. Most of half of the cases in the Family Division Reports for 2014 involved international issues. Due to increased globalisation and an itinerant population, the family lawyer is frequently faced with considering the client’s position in conflicting legal jurisdictions and needs to protect the client accordingly.

Legal systems differ in their respective approaches to the enforceability of pre-nuptial agreements, to the availability of spousal maintenance awards, in their treatment of pre-marital assets, inherited assets and assets acquired post separation, and in their different powers to order financial disclosure.

The jurisdiction in England and Wales is often regarded as most favourable to wives who are able, in some circumstances, to claim maintenance from their spouse which endures beyond termination of the marriage. The decision to award spousal maintenance is a discretionary judicial exercise based upon guidelines set out in Section 25 of the Matrimonial Causes Act 1973 and replicated in the Civil Partnership Act 2004.

Other jurisdictions are not so generous. In Scandinavian countries for example, it is almost unheard of for there to be a spousal maintenance award, and even our next door neighbour Scotland does not share our generosity towards spouses: there the clean break principle is adhered to more stringently than in England & Wales. Only if the spouse is financially dependent upon the other is it possible to obtain an order for spousal maintenance for up to 3 years. Only in very limited circumstances will spousal maintenance endure beyond this point.

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