Richard Kershaw, Partner in our Family and Relationships department, discusses the critical role jurisdiction plays in divorce proceedings, especially when considering the financial implications of divorcing in the UK versus abroad.
With over 100,000 divorces recorded in England and Wales in 2023, many couples are opting for non-court dispute resolution (NCDR) due to its speed and cost-effectiveness. However, jurisdictional choice remains a key strategic decision, as the country handling the divorce typically governs the financial orders. Different jurisdictions offer varying powers and considerations, and choosing the wrong one or allowing a spouse to choose can lead to significant and lasting financial disadvantages.
Richard highlights two areas where jurisdiction can dramatically affect capital and income outcomes. In England and Wales, courts treat cohabitation that transitions into marriage as part of the marital timeline, potentially extending the scope of matrimonial assets. This approach, affirmed in the Supreme Court case Standish v Standish, contrasts with jurisdictions like California, which only consider assets accrued during the legal marriage. Additionally, English courts can issue pension sharing orders, but only for UK-based pensions, which can disadvantage parties with foreign pensions. These nuances underscore the importance of strategic jurisdictional planning in high-net-worth (HNW) and ultra-high-net-worth (UHNW) cases.
On the income side, England and Wales assess spousal maintenance based on need rather than equal sharing, with factors like income, budget, and earning capacity influencing outcomes. This flexible approach allows for longer-term support, unlike many European jurisdictions where maintenance is strictly time-limited. For example, Scotland typically caps spousal support at three years post-divorce, and countries like Sweden and Norway emphasise financial independence. These differences reinforce London's reputation as the "divorce capital of the world," not only for its handling of UHNW cases but also for its expansive and enduring view of marital financial obligations.
Richard Kershaw's article was published in Today's Family Lawyer, 18 August 2025. Read the full article on the Today's Family Lawyer website [external link].
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