Divorce Tourism: What You Need to Know

The term "divorce tourism" is, as the lawyers who use it acknowledge, slightly unfair to the parties involved. It implies a kind of consumer choice, as though couples were selecting jurisdictions the way they might select a holiday destination. The reality is more complicated. Most international couples have genuine connections to multiple countries, and the question of where to bring divorce proceedings is often a matter of legitimate choice between forums to which they are properly connected.

What "divorce tourism" describes is the strategic use of those connections to secure proceedings in a more favourable jurisdiction. England and Wales has, for many years, been one of the most popular destinations for this kind of strategic forum selection, because the financial settlements produced by English courts are generally more generous to the financially weaker spouse than those produced in many other jurisdictions.

Why England Is the Preferred Forum

English law’s approach to financial settlement is broadly characterised by three features. The first is the principle of equal sharing of matrimonial property, established in cases like White v White and developed through subsequent decisions. The second is the broader Section 25 analysis, which considers needs, contributions, the duration of the marriage, and the standard of living. The third is the relatively limited weight given to pre-nuptial agreements compared to many other systems, with English courts retaining oversight to prevent manifestly unfair outcomes.

Together, these features tend to produce settlements that favour the financially weaker spouse to a greater extent than systems like France, where matrimonial regimes are more strictly applied; the United States, where outcomes vary substantially by state; or many Middle Eastern jurisdictions, where settlements tend to be considerably less generous.

For an internationally mobile spouse who has connections to England (through residence, domicile, or matrimonial home), the choice to file in England rather than elsewhere can be the most consequential strategic decision in the entire divorce.

Establishing Jurisdiction in England

The basis on which an English court accepts jurisdiction in a divorce case is set out in the Domicile and Matrimonial Proceedings Act 1973 as amended, alongside post-Brexit jurisdictional rules. The principal grounds include domicile of either party, habitual residence of either party, and various connections that build over time.

The technical detail matters. Domicile is not the same as residence. Habitual residence is a question of fact assessed against a particular point in time. The "act first" advantage in international cases turns substantially on which spouse can establish jurisdiction in their preferred forum first, and on the procedural moves that secure that jurisdiction once established.

For couples with connections to multiple countries, the question is rarely whether jurisdiction can be established somewhere, but where it can be established and how quickly.

Lex Fori Versus Closer Connection

Once jurisdiction is established, the next question is what law applies. In England, the principle of lex fori means that English law generally applies to financial proceedings, even where the parties have closer connections to other jurisdictions. This is one of the features that makes England attractive as a forum: a couple who married in France, lived in Switzerland, and then established connections to England may find their financial settlement determined by English law, with all the features described above.

This is not unique to England, but the combination of accessible jurisdictional rules and generous substantive law makes the English system particularly attractive for the financially weaker party in international marriages.

The Strategic Decisions

For a couple contemplating divorce with connections to multiple jurisdictions, the strategic considerations include:

• Where each spouse is currently habitually resident, and where each is domiciled. 
• What other jurisdictions could potentially accept the case, and what their legal regimes would produce. 
• The relative speed at which proceedings can be commenced in different forums. 
• The recognition and enforcement of orders made in one jurisdiction in the other relevant jurisdictions. 
• The treatment of pre-nuptial agreements in each potential forum.

These are not abstract questions. They translate directly into the financial outcome of the divorce, and they shape the timeline and costs of the proceedings.

Race to Court and Jurisdiction Disputes

Where both spouses have legitimate jurisdictional options, the strategic question of which forum to use can become a "race to court". The first spouse to commence proceedings in their preferred forum often anchors the case there, particularly under the rules that govern competing proceedings between EU and former-EU jurisdictions.

This produces some of the more high-profile international matrimonial litigation: cases where one spouse files in England and the other files in another jurisdiction shortly afterwards, with the courts then having to determine which forum should hear the case. Lis pendens rules, forum conveniens analyses, and applications for stay of proceedings are all involved in these disputes, which can themselves be expensive and time-consuming before the substantive divorce has even begun.

Premarital Assets and Forum Choice

A specific area where forum choice matters significantly is the treatment of financial separation of premarital assets. English law treats assets acquired before the marriage as potentially non-matrimonial, but the protection is not absolute. Where premarital assets have been "mingled" with matrimonial assets, used to fund the matrimonial home, or otherwise integrated into the family’s life, they can come into the matrimonial pot and be subject to division.

In other jurisdictions with stricter matrimonial property regimes, premarital assets may be more rigorously ringfenced. For a wealthy spouse with substantial premarital wealth, this can mean that the choice of forum determines whether those assets are at risk in the divorce.

The Role of Pre-Nuptial Agreements

In the international context, pre-nuptial agreements take on additional importance. A couple who have signed a pre-nup in one jurisdiction may face the question of whether that agreement will be respected in another. English courts apply the Radmacher framework to pre-nups regardless of where they were signed, which means that even a pre-nup that would be fully binding in its home jurisdiction can be reopened in England if it does not satisfy the English procedural and substantive safeguards.

For internationally mobile couples, this argues for pre-nups that are drafted with multi-jurisdictional considerations in mind, with proper independent advice in each relevant country, and with terms that would survive scrutiny in the most likely forums for any future divorce.

Children Cases and the Hague Convention

The international dimension of divorce is not limited to financial proceedings. Where children are involved, questions of habitual residence, parental rights, and international relocation become governed by the 1980 Hague Convention on the Civil Aspects of International Child Abduction and a network of related instruments.

A move to a different jurisdiction by one parent without the other’s consent or court approval can amount to wrongful removal under the Hague Convention, with serious legal consequences. The strategic and procedural considerations in these cases are substantial and require specialist handling.

Recognition and Enforcement

A final consideration is the recognition and enforcement of any order made by the chosen forum. An English financial order needs to be enforceable against the spouse and against assets that may be located in other countries. The mechanisms for recognition vary considerably between jurisdictions, and an order that is technically correct but practically unenforceable is of limited value.

Working backwards from enforcement is part of the strategic analysis. The forum that produces the best terms on paper is not necessarily the forum that produces the best practical outcome.

The Bottom Line

The choice of forum in an international divorce is not a tactical detail; it is often the most important decision in the case. Knowing how to make that choice, and how to execute on it quickly enough to secure the chosen forum, is among the most consequential parts of specialist matrimonial practice.