European Union Family Law

Married couples who are based internationally may well have a choice as to jurisdiction and those whose marriages are not secure may feel they should give some thought to that when planning their lives. Certainly in England and Wales, the mere execution of a Pre Nuptial Agreement will not be sufficient to determine what happens.

England and Wales has become a country where individuals from many countries come to live and work. London, in particular, as a major commercial and financial centre, attracts wealthy individuals and their employers. Many people will only stay here for a period of two years or so. Many will be accompanied by their spouses and children. They may well not appreciate that the English Courts can exercise their jurisdiction not only over any disputes which may arise in relation to children but also in relation to divorce and the financial consequences provided that they have become habitually resident here. If one party is domiciled here, such habitual residence can be acquired in six months, otherwise it will be twelve months. Within the EU (except Denmark) after residence is acquired, the first to file the divorce proceedings prevails. Outside the EU, habitual residence and/or domicile is still required but there may be an argument as to which is the most convenient country if there is a race between two jurisdictions. The law which the English Courts will administer will be English law. This may be a major surprise to, for example, two Italian bankers who come from Italy to pursue a posting working in London whose marriage unfortunately runs into major difficulties after they have been here for a year, because they will find that one can divorce the other under English law here.

It might be thought that this would be of little significance, as all European countries would be bound to have a similar divorce law and similar financial consequences but this is far from the case.

The decision to be made by the Judges in England and Wales on financial issues following a divorce involves a wide discretion to be exercised by them in order to determine what is "fair". Recent decisions of the highest Appeal Court, the House of Lords, in the widely reported cases of Miller and MacFarlane, which follow another case in the House of Lords called White in 2000, have established very generous provision particularly for homemaker spouses in this jurisdiction. In the name of fairness, the provision and compensation for these spouses substantially exceeds their reasonable needs and requirements and provides for an element of compensation. If there is an inadequate amount of capital to provide a clean break, there may be periodical payments for life. The amount of awards varies of course between case and case but, if the division is not to be 50/50, that decision needs to be justified by the Judge. This is far more generous than any other European jurisdiction and also that to be found in other countries of the world.

To view a summary of family law in other european jurisdictions, please select a country from the list on the left.