Just because a person is a regular visitor to the UK and has a home here does not mean they have the right to bring divorce proceedings here. That was the decision of the Family Court in a recent case.

It involved a couple of German origin who had lived in Switzerland for many years. They also kept a flat in Belgravia for the use of their student son, which the wife visited many times in order to attend the opera and similar events.

When their marriage broke down, the wife wished to have the divorce proceedings dealt with by the UK courts, as the financial settlements between divorcing couples are traditionally more evenly balanced than is common in many foreign jurisdictions.

Under a foreign pre-marital agreement, the woman had disclaimed any right to a financial settlement. That would have been difficult for her to challenge were the divorce to be dealt with in Switzerland or Germany. She therefore issued divorce proceedings in the UK, where such agreements are not legally binding although in the appropriate circumstances a party may be held to it or at the least an award reduced. In the UK usually the Court will expect, although not necessarily require, certain key features in respect of pre-nuptial agreements regarding receipt of appropriate independent legal advice and the absence of undue influence when they are signed.

The wife indicated that she should not be held to the pre-nuptial agreement because of these flaws but she would only be able to present such an argument in front of a UK court.

To succeed in her wish to bring the issue before a British court she had to be of UK domicile. She claimed she was, having been a UK resident for more than six months and having become closely integrated into English society.

However, the Court rejected her claim of UK domicile. In its view, her visits did not satisfy the test that she 'belonged' in the UK rather than being a frequent visitor to these shores.

Says  Amanda Holland "Where a marriage break-up has an international dimension, there can be many added complications. Our experts can guide you through the process with sound advice and sensitivity."

Please contact Amanda Holland on 0808 166 8827 or email a.holland@sydneymitchell.co.uk

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