When a marriage breaks down between couples who have ties to more than one country, deciding where to divorce can become a race against time. Known as a “jurisdiction race,” this legal scramble can have a lasting impact on everything from financial settlements to child arrangements.
In this guide, we’ll explain what a jurisdiction race is, why it matters, how it works under UK law and internationally and what to do if you think your divorce could involve more than one country’s legal system.
What is a jurisdiction race in divorce?
A jurisdiction race occurs when both spouses could potentially file for divorce in different countries – and each person wants the case to be heard in the country that is most favourable to them. In legal terms, “jurisdiction” refers to a court’s authority to hear a case. Since divorce laws and outcomes can vary dramatically from one country to another, spouses may compete to file their divorce petition first in the jurisdiction that best serves their interests.
Timing is critical. In many cases, the country where the divorce petition is issued first gains the right to handle the proceedings. This “first past the post” rule means even a few hours can make the difference between your case being heard in London or another capital city across the world.
Why does jurisdiction matter in divorce?
Jurisdiction affects more than just geography – it can shape your future. Different countries have different laws on financial disclosure, property division, spousal maintenance and custody. For example:
- England and Wales are considered more generous to financially weaker spouses, particularly in high-net-worth cases.
- Some European countries divide assets based on strict marital property regimes.
- Other jurisdictions may not recognise pre-nuptial agreements or may limit spousal maintenance altogether.
Choosing the “right” jurisdiction can influence whether you walk away with half the assets or much less. It can affect whether you receive long-term support or nothing beyond what’s already in your name. For parents, it can also influence child custody and relocation rights.
Who can file for divorce in England or Wales?
To file for divorce in England or Wales, you must meet certain residency or domicile requirements. You can apply if any of the following apply:
- Both you and your spouse are habitually resident in England or Wales.
- You were both last habitually resident here and one still resides here.
- One of you is habitually resident here and has lived here for at least one year.
- One of you is domiciled in England or Wales and has lived here for at least six months.
- Both of you are domiciled in England or Wales.
If you meet these criteria and suspect your spouse may try to file elsewhere, it may be wise to seek legal advice quickly to protect your position.
What changed after Brexit?
Before the UK left the European Union, EU law (specifically Brussels IIa) determined which country’s courts had jurisdiction in family matters. Under that system, the court that received the divorce application first had priority. This encouraged a jurisdiction race, particularly among international couples.
Since Brexit, Brussels IIa no longer applies in the UK. Instead, England and Wales now follow domestic rules to determine jurisdiction and use the “closest connection” principle in certain cases. However, the race to file first can still be very important – particularly if another country involved continues to apply a first-come, first-served rule.
What happens if both spouses file in different countries?
If both parties start proceedings in different countries, courts must decide which country has the most appropriate jurisdiction to handle the divorce. This is known as a “forum dispute.” Each country will assess whether it has jurisdiction based on its own rules. In the UK, this process is called a “forum conveniens” application – essentially deciding which forum is more suitable.
The court may consider:
- Where the couple last lived together
- The location of key assets
- The children’s habitual residence
- Each spouse’s financial and professional ties
This process can be time-consuming and expensive, which is why speed and strategic legal advice are vital.
How to avoid a jurisdiction race
Not all international couples are adversarial. If both parties agree on where they want the divorce to proceed, they can avoid the cost and stress of a jurisdiction dispute. This might involve negotiating a pre- or post-nuptial agreement that includes jurisdiction clauses or working with solicitors to settle financial and parenting matters cooperatively.
If the couple can’t agree, the risk of a jurisdiction race increases – and legal advice becomes essential.
What to do if you suspect a jurisdiction race
If you believe your spouse may be planning to file for divorce in another country, you should seek immediate advice from a family solicitor with experience in international divorce. Early action is key.
A solicitor can help you:
- Assess whether you meet jurisdiction requirements in England or Wales
- File your petition swiftly, if needed
- Advise on financial and parenting implications under UK law
- Respond to foreign proceedings or challenge jurisdiction in court
Waiting too long to act could result in your divorce being decided under a legal system that is less favourable to your interests.
Speak to an expert divorce solicitor today
International divorce cases require speed, strategy and experience. At Osbourne Pinner, our specialist divorce solicitors can advise you on the best course of action if your marriage has international elements or you believe a jurisdiction race is likely.
Arrange your free 30-minute consultation with one of our solicitors today. Call 0203 983 5080, email [email protected] or complete the contact form below. We’re available via video call or in person at our offices in London (Harrow, Canary Wharf or Piccadilly Circus) or Manchester City Centre.
