# Cross-Border Divorce Jurisdiction: Where to File and How to Get the Decree Recognised

> Grounds of jurisdiction under Regulation (EU) 2019/1111 from 01.08.2022, the race of fora and lis pendens, the English rules after Brexit under s. 5(2) DMPA 1973, recognition of foreign, religious and non-judicial divorces, and why the money does not follow the divorce.

Author: Maria Plotnikova — Lawyer, Family Office (https://wiki.private.law/en/authors/plotnikova)
Last modified: 2026-08-21T15:23:00.000Z
Canonical: https://wiki.private.law/en/divorce-jurisdiction
Topics: structures
Jurisdictions: global, eu, uk, russia, germany, france, spain, ireland, italy, uae, usa
Product tags: wealth-planning, estate-planning
Semantic tags: wealth-planning, estate-planning

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The corpus asserts that the outcome of a cross-border divorce is settled at the moment the court is chosen. The assertion is true and incomplete: it says nothing about how that court is determined, who wins the race for it, and what happens to the resulting decree in a third country. This page closes the procedural layer and answers exactly two questions — where to file, and what to do with the decree abroad.

The first thing to separate out: a divorce is not one case but three, and they are governed by different instruments. Marital status inside the EU is governed by [Regulation \(EU\) 2019/1111 \(Brussels IIb\)](https://eur-lex.europa.eu/eli/reg/2019/1111/oj), adopted on 25 June 2019 and applicable from 1 August 2022 \(Article 105\(2\) and Article 100\(1\)\). Maintenance is expressly excluded from its scope by point \(e\) of Article 1\(4\) and lives in Regulation \(EC\) No 4/2009. Trusts and succession are excluded by point \(f\). The matrimonial property regime runs under Regulation \(EU\) 2016/1103; the law applicable to the divorce itself runs under Regulation \(EU\) No 1259/2010 \(Rome III\), applicable from 21 June 2012. One and the same court may receive all three packages, two of them or one — and that depends not on the country but on which ground of jurisdiction the applicant used.

The second: jurisdiction is settled by speed. Article 3 of Brussels IIb gives seven alternative grounds with no hierarchy, and Article 20 gives the case to the court seised first. Hence the construction continental practitioners call the race to the courthouse: a mobile couple normally has three or four competent fora, the difference between them measured in money not in percentages but in multiples, and the forum goes to whoever filed earlier — sometimes by hours.

## What the Regulation takes and what it gives away

Brussels IIb is an instrument about status and about parental responsibility, and about nothing else. Article 1\(1\) defines its subject matter as divorce, legal separation and marriage annulment plus parental responsibility; Article 1\(4\) throws out the establishment of parentage, adoption, name, emancipation, maintenance, trusts and succession, as well as measures taken in consequence of criminal offences committed by children. Recital 13 explains the logic of the split: maintenance is already covered by Regulation 4/2009, and the court competent as to status normally also receives ancillary spousal maintenance — not under Brussels IIb, but under point \(c\) of Article 3 of Regulation 4/2009.

Regulation 2201/2003 was repealed with effect from 1 August 2022 \(Article 104\(1\)\), but it continues to apply to proceedings instituted and documents drawn up before that date \(Article 100\(2\)\). The practical consequence: a 2021 case and a 2023 case live under different texts, and references in older judgments and contracts to 2201/2003 are read through the correlation table in Annex X \(Article 104\(2\)\).

Denmark does not take part in the EU family regulations: under Articles 1 and 2 of Protocol No 22 it is not bound by Brussels IIb and is not subject to it \(recital 96\). A Danish divorce travels through the rest of the EU under national recognition rules or under the Hague Convention of 1970, to which Denmark is a party, and not under the Regulation. Ireland does take part; for it, Article 2\(3\) replaces the concept of nationality with the concept of domicile — the provision is drafted as applying "as regards Ireland and the United Kingdom", a legislative trace of 2019, when British participation was still assumed.

## The seven grounds of Article 3 and the absence of any hierarchy between them

Article 3 gives an exhaustive but broad list. Under point \(a\), jurisdiction lies with the courts of the Member State in whose territory: \(i\) the spouses are habitually resident; \(ii\) the spouses were last habitually resident, insofar as one of them still resides there; \(iii\) the respondent is habitually resident; \(iv\) in the event of a joint application, either of the spouses is habitually resident; \(v\) the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made; \(vi\) the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is a national of that Member State. Under point \(b\) — the courts of the Member State of the nationality of both spouses.

There is no hierarchy between these grounds. The Court of Justice put it directly in Hadadi \(C-168/08, judgment of 16 July 2009\): Article 3\(1\)\(a\) and \(b\) "establishes a number of heads of jurisdiction, without establishing any hierarchy" between them, all the objective grounds are alternative, and the coexistence of several competent courts is expressly contemplated. The same judgment removes the temptation of "effective nationality": where the spouses hold two nationalities in common, the courts of both States have jurisdiction, and no additional connection with the chosen one may be required — the choice of forum belongs to the spouses.

Three refinements from the case law of the Court of Justice are worth keeping in mind:

- **Habitual residence is singular.** In IB v FA \(C-289/20, judgment of 25 November 2021\) the Court held that a spouse who divides his or her time between two Member States may have habitual residence in only one of them, and only the courts of that State have jurisdiction to dissolve the marriage. A dual base under Article 3\(a\) cannot be built.
- **Six months against twelve is a lawful difference.** In OE v VY \(C-522/20, judgment of 10 February 2022\) the Court held it compatible with Article 18 TFEU that a national of the forum needs six months of residence while a non-national needs a year. A passport of the forum halves the waiting period, and that is a working planning instrument.
- **Residual jurisdiction does not rescue anyone from another State's competence.** Under Article 6\(1\), national rules apply only where no court of a Member State has jurisdiction under Articles 3, 4 or 5. In Sundelind Lopez \(C-68/07, judgment of 29 November 2007\) the Court held that even where the respondent is neither habitually resident in nor a national of a Member State, exorbitant national rules cannot be used if the courts of another Member State have jurisdiction under Article 3. Article 6\(2\) adds protection from the other side: a spouse who is habitually resident in the EU or is a national of a Member State may be sued in another Member State only under Articles 3, 4 and 5.
Two technical grounds complete the picture: Article 4 gives the court seised under Article 3 jurisdiction over a counterclaim, and Article 5 allows the court that gave a decision on legal separation to convert it into a divorce where its national law so provides.

## The race of fora: who filed first

The moment of seising is fixed by Article 17: a court is deemed to be seised at the time the document is lodged with the court, provided that the applicant has not subsequently failed to take the steps required to have service effected on the respondent; or, where service precedes lodging, at the time the document is received by the authority responsible for service. The provision looks technical, but it is precisely what decides the winner: a gap of one day — and in large cases of several hours — determines whose rules will govern the division.

Article 20\(1\) obliges the court seised second to stay its proceedings of its own motion until the jurisdiction of the court first seised is established; under Article 20\(3\), once the jurisdiction of the first court is established, the second must decline jurisdiction in its favour. There is no discretion here: this is not forum non conveniens but an automatic mechanism.

The loser of the race cannot replay it at the recognition stage. The list of grounds of refusal in Article 38 is closed, and recital 56 expressly names a breach of the lis pendens rule as an example of a ground that cannot be invoked. In other words, a court that wrongly took a case second will still give a decision entitled to recognition.

What exactly the winner takes:

- **The substantive model of division.** English discretion under s. 25 MCA 1973, German equalisation of accrued gains, French community of property and Russian joint ownership produce different sums on identical assets — this is worked through in the piece on [division of assets](https://wiki.private.law/en/divorce-property-division).
- **The applicable law.** In Rome III States the court applies the conflict rule of the Regulation; in England and in the United States it applies its own law as lex fori. The mechanics of choosing the law are in the pieces on [property regimes](https://wiki.private.law/en/matrimonial-property-regimes) and the [prenuptial agreement](https://wiki.private.law/en/prenup-cross-border).
- **The property package.** Under Article 5\(1\) of Regulation 2016/1103, the court seised in the divorce automatically acquires jurisdiction over the matrimonial property regime as well. But Article 5\(2\) requires the agreement of the spouses where the divorce was taken on a "weak" ground: one-year residence of the applicant, six-month residence of a national, conversion of legal separation into divorce, and residual jurisdiction. The ground chosen for the divorce determines the scope of what that same court may go on to decide.
- **The maintenance package.** Point \(c\) of Article 3 of Regulation 4/2009 gives ancillary spousal maintenance to the court competent as to status — unless that jurisdiction is based solely on the nationality of one of the parties. An exorbitant national ground preserves the divorce but severs the maintenance.
- **Timetable and procedural culture.** Compulsory full disclosure or the lack of it, access to banking documents, speed. An English divorce under s. 1\(4\)–\(5\) MCA 1973 as amended with effect from 6 April 2022 cannot be completed sooner than 20 weeks to the conditional order plus 6 weeks to the final order, with an aggregate limit of 26 weeks under s. 1\(7\), while the court may shorten the period in a particular case under s. 1\(8\).
> ⚠️ The race costs more than it appears to. Filing in "one's own" forum almost always means giving up the negotiating position: the other side learns of the divorce from a court document rather than from a conversation. Economically it is justified only where the difference between the fora in money exceeds the price of a spoilt process, and that sum is calculated before filing, not after.

## England after Brexit: different rules and the return of forum non conveniens

Brussels IIb does not apply to England. Regulation 2201/2003 ceased to apply to proceedings instituted on or after 31 December 2020, and its jurisdictional rules were transposed — with one substantial addition — into s. 5\(2\) of the Domicile and Matrimonial Proceedings Act 1973 by The Jurisdiction and Judgments \(Family\) \(Amendment etc.\) \(EU Exit\) Regulations 2019 \(SI 2019/519\).

The current text of s. 5\(2\) DMPA 1973 gives the court jurisdiction in divorce and judicial separation "if \(and only if\)" on the date the application is made: \(a\) both spouses are habitually resident in England and Wales; \(b\) both spouses were last habitually resident there and one of them continues to reside there; \(c\) the respondent is habitually resident there; \(ca\) in the case of a joint application, either of the spouses is habitually resident there \(paragraph added with effect from 6 April 2022 by SI 2022/237\); \(d\) the applicant is habitually resident there and has resided there for at least a year immediately before the application; \(e\) the applicant is domiciled and habitually resident there and has resided there for at least six months; \(f\) both spouses are domiciled in England and Wales; \(g\) either of the spouses is domiciled in England and Wales.

Paragraph \(g\) is the new rule and the principal practical result of Brexit. Sole domicile of one party did not exist as a ground in the Brussels IIa system: there, domicile worked only as a substitute for the nationality of both spouses. Now the domicile of one is enough, and an English domicile of origin is not lost through years of residence abroad and revives when a domicile of choice is abandoned. The circle of people entitled to divorce in London has widened substantially.

The second change is procedural. Schedule 1 to the DMPA 1973 distinguishes obligatory from discretionary stays. The obligatory stay under paragraph 8 operates only in relation to "related jurisdictions" — Scotland, Northern Ireland, Jersey, Guernsey and the Isle of Man — and requires four conditions to coincide, including a year of habitual residence of one of the spouses in that jurisdiction. To every other country, including EU Member States, the discretionary stay under paragraph 9 applies: the court may stay the proceedings if "the balance of fairness \(including convenience\)" between the parties indicates that the dispute should be disposed of in the other jurisdiction; paragraph 9\(2\) directs the court to have regard to all relevant factors, including the convenience of witnesses and the prejudice from granting or refusing the stay. The carve-out that took Brussels IIa cases outside paragraph 9 was removed with effect from 31 December 2020.

The result for London is two-sided. Filing in England no longer reserves the forum automatically: there is no hard first-to-file rule between England and the EU in either direction — the English court weighs the balance of fairness, and the EU court simply does not see the English proceedings, because Article 20 of Brussels IIb operates only between Member States. Parallel proceedings in London and in Paris are therefore possible and mutually compatible, and the outcome is determined not by the date of filing but by whose decision takes effect first and where the assets sit.

> ⚙️ The English forum remains expensive in time. The minimum of 26 weeks under s. 1\(4\)–\(5\) MCA 1973 runs from the start of the proceedings, and the financial track runs separately and is not tied to those periods. A continental non-judicial divorce by agreement closes faster, but it also decides less.

## Recognition of a foreign divorce: three different mechanisms

**Inside the EU — automatically.** Under Article 30\(1\), a decision given in one Member State is recognised in the others without any special procedure being required. Article 30\(2\) adds a point of practical importance: no procedure at all is required for updating the civil-status records of a Member State on the basis of a divorce decision against which no further appeal lies — a copy of the decision and the certificate under Article 36 suffice \(Article 31\). Conversely, an interested party may apply for a decision that there are no grounds for refusal \(Article 30\(3\)\).

There are exactly four grounds of refusal in matrimonial matters, and they are listed in Article 38: manifest contrariety to the public policy of the Member State of recognition; a decision given in default of appearance where the document instituting the proceedings was not served on the respondent in sufficient time and in such a way as to enable a defence, unless the respondent unequivocally accepted the decision; irreconcilability with a decision given between the same parties in the Member State of recognition; irreconcilability with an earlier decision given between the same parties in another Member State or in a third State, provided that it fulfils the conditions for recognition. Neither mistaken jurisdiction, nor breach of lis pendens, nor disagreement with the law applied appears on that list.

**Outside the Regulation — by convention or by national law.** The Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations entered into force on 24 August 1975 and has twenty Contracting States. It is in force for nineteen: Albania, Australia, Cyprus, Czechia, Denmark, Egypt, Estonia, Finland, Italy, Luxembourg, Moldova, the Netherlands, Norway, Poland, Portugal, Slovakia, Sweden, Switzerland and the United Kingdom. Twelve EU Member States take part; Germany, France, Spain, Ireland, Belgium, Austria and Greece are not among them. Russia and the United States are not parties.

The gap shows on a concrete route. An English divorce is not recognised automatically in Germany: under § 107\(1\) FamFG, a foreign decision dissolving a marriage is recognised only after the Land judicial authority has established that the conditions for recognition are met. The exception is a decision of a court or authority of a State of which both spouses were nationals at the time of the decision. Competence lies with the judicial authority of the Land where one of the spouses is habitually resident, failing which the Land where the new marriage is to be concluded, and residually Berlin \(§ 107\(2\)\). This is an administrative procedure with timetables and a fee where four years ago a certificate was enough.

In Ireland, by contrast, an English divorce is recognised generously: under s. 5\(1\) of the Domicile and Recognition of Foreign Divorces Act 1986 a divorce is recognised if granted in the country where either spouse is domiciled, and s. 5\(3\) extends this expressly to England and Wales, Scotland, Northern Ireland, the Isle of Man and the Channel Islands.

**England — under the Family Law Act 1986.** Section 45 provides that an overseas divorce is recognised "if, and only if," it falls within sections 46 to 49 or another enactment. Section 46\(1\), for divorces obtained "by means of proceedings", requires two things: the divorce is effective under the law of the country where it was obtained, and at the relevant date — the date on which the proceedings were commenced — at least one of the spouses was habitually resident in that country, or was domiciled there, or was a national of it. Section 51\(3\)\(a\) permits refusal where reasonable steps to give notice to a party were not taken or the party was given no reasonable opportunity to take part, and section 51\(3\)\(c\) where recognition would be manifestly contrary to public policy.

**Russia.** Articles 160\(3\) and \(4\) of the Family Code of the Russian Federation recognise as valid a dissolution of marriage effected outside Russia where the legislation of the relevant foreign State on the competence of the authorities and on the applicable law has been observed — that is, Russia checks the foreign court's jurisdiction and the foreign conflict rule, not only the result. Article 415 of the Code of Civil Procedure adds the procedural layer: decisions of foreign courts dissolving a marriage between a Russian and a foreign national are recognised without any further proceedings if, at the time the case was heard, at least one of the spouses resided outside Russia; between two Russian nationals — if both resided outside Russia. The jurisdiction of the Russian court works symmetrically: under point 8 of part 3 of Article 402 of the Code of Civil Procedure, a divorce case falls to a Russian court if the claimant is resident in Russia or at least one of the spouses is a Russian national, and under Article 160\(2\) of the Family Code a Russian national living abroad may dissolve the marriage in a Russian court irrespective of the other spouse's nationality.

> ⚠️ The consular divorce is a trap. In Solovyev v Solovyeva \[2014\] EWFC 1546 \(Sir James Munby P, 15 May 2014\) spouses who were Russian nationals dissolved their marriage at the Russian consulate in London on 30 April 2012. The English court refused recognition: the consulate stands on English territory, so the divorce was "obtained in the British Islands", and under s. 44\(1\) of the Family Law Act 1986 such a divorce is effective only if granted by a court of civil jurisdiction. The Russian procedure was impeccable — but outside Russia that divorce does not exist in England.

## Religious and non-judicial divorces

The line here runs not along religion but along two technical questions: were there "proceedings", and was a public authority engaged.

**Talaq.** A talaq pronounced in England is ineffective regardless of whether the parties' personal law recognises it: s. 44\(1\) FLA 1986 leaves no alternatives. A talaq pronounced abroad without any procedure runs under section 46\(2\) — the regime for divorces "obtained otherwise than by means of proceedings". There are three conditions and they are harsher than the ordinary ones: the divorce is effective under the law of the country where it was obtained; at the relevant date either both spouses were domiciled in that country, or one was domiciled there and the other in a country that recognises such a divorce; and neither spouse was habitually resident in the United Kingdom throughout the period of one year immediately preceding that date. The one-year rule is the protective mechanism: a British wife who has lived in England for a year cannot be divorced by a unilateral declaration abroad. On top of that, section 51\(3\)\(b\) permits refusal where there is no official document certifying that the divorce is effective under the law of the country where it was obtained and, where the other spouse is domiciled in a third country, no official document certifying that the divorce is recognised there.

**Get.** The problem is the mirror image: the civil divorce has been obtained but the religious knot is not untied, and one party remains bound. The English answer is s. 10A MCA 1973, inserted by the Divorce \(Religious Marriages\) Act 2002: where the marriage was celebrated in accordance with Jewish or other prescribed usages and its dissolution by those usages requires the cooperation of both parties, the court may on the application of either of them order that the divorce is not to be made final until both parties have produced a declaration of the steps taken to effect the religious dissolution. This is a lever, not an automatic mechanism: the order is made only if the court is satisfied that it is just and reasonable in the circumstances of the case, and it may be rescinded at any time.

**Administrative and notarial divorces.** Continental Europe has moved divorce by consent out of the courts on a large scale. In Spain, Articles 82 and 87 of the Civil Code, added by Ley 15/2015 on voluntary jurisdiction \(in force from 23 July 2015\), allow divorce by mutual consent once three months have elapsed since the marriage — through a regulating agreement before the court clerk or in a public deed before a notary, with the spouses appearing in person and with counsel; where there are minor children in the situation described in the preceding article, that route is closed, and diplomatic and consular officers may not authenticate such a deed. In France, non-judicial divorce by mutual consent has been available since 1 January 2017 — an agreement in private written form, countersigned by counsel for each party and deposited among the records of a notary \(Articles 229-1 to 229-4 of the Civil Code, introduced by Law no. 2016-1547 of 18 November 2016\). In Italy, divorce is executed before the civil registrar.

Inside the EU such divorces circulate through a separate channel. Article 65\(1\) of Brussels IIb recognises authentic instruments and agreements on legal separation and divorce having binding legal effect in the Member State of origin without any special procedure; the certificate under Article 66 is issued in the form of Annex VIII and only where two conditions are met \(Article 66\(2\)\): the Member State that empowered the authority had jurisdiction under Chapter II, and the instrument has binding legal effect. The boundary between a "decision" and an "agreement" was drawn by the Court of Justice: in Senatsverwaltung für Inneres und Sport \(C-646/20, Grand Chamber, 15 November 2022\) the Court held that a divorce deed drawn up by a civil registrar and containing an agreement of the spouses confirmed before that registrar is a "decision" — that is, it is recognised under the general regime and not under the regime for agreements.

Outside the EU the same document becomes a problem. The English characterisation is a question of fact: if a public authority examined and approved the divorce, there were "proceedings" and the softer section 46\(1\) applies; if the State merely deposited a private agreement of the parties, the document shifts towards section 46\(2\) with its requirement of domicile of both spouses and its one-year rule. The German § 107 FamFG will in any event require recognition to be established by the Land judicial authority.

## The divorce is recognised — the money does not follow it

The most expensive illusion of a cross-border divorce: that once the status is recognised, its consequences are recognised too. That is wrong almost everywhere.

English statute says so in terms. Section 51\(5\) FLA 1986: nothing in this Part is to be construed as requiring the recognition of any finding of fault or of any maintenance, custody or other ancillary order made in the proceedings. The divorce is recognised — the maintenance order contained in the same decision is not recognised automatically and requires a basis of its own.

American law reached the same point through the constitution. In Estin v. Estin, 334 U.S. 541 \(decided 7 June 1948\) the Supreme Court of the United States articulated the doctrine of divisible divorce: a Nevada divorce obtained in the absence of the other party on constructive notice ended the marriage but could not extinguish a New York maintenance decree, because Nevada had no personal jurisdiction over the absent wife. Status is one thing, money another, and the second requires jurisdiction over the person.

In the EU the split is built into the architecture. The three instruments — Brussels IIb, 4/2009 and 2016/1103 — converge in one court only on certain grounds of jurisdiction:

- Maintenance: under point \(c\) of Article 3 of Regulation 4/2009 the court competent as to status receives ancillary spousal maintenance, provided its jurisdiction is not based solely on the nationality of one of the parties. The parties may agree on the court in advance under Article 4\(1\), including the court competent in the matrimonial proceedings or the court of the last common habitual residence for a period of at least a year; such an agreement must be in writing under Article 4\(2\) and as a rule confers exclusive jurisdiction. Article 4\(3\) closes this option for maintenance obligations towards a child under 18 — a forum for child maintenance cannot be agreed.
- Property regime: Article 5\(1\) of Regulation 2016/1103 gives jurisdiction to the divorce court automatically, but Article 5\(2\) requires the agreement of the spouses where the divorce was taken on the applicant's one-year ground, on a national's six-month ground, by conversion of legal separation into divorce, or on residual jurisdiction. An agreement concluded before the court is seised must comply with the formal requirements of Article 7\(2\). References in that provision to 2201/2003 are read as references to 2019/1111 under Article 104\(2\) and Annex X.
Hence the design rule: the choice of a ground of jurisdiction is simultaneously a choice of scope. A divorce taken on a "strong" ground \(common habitual residence, residence of the respondent, nationality of both spouses\) pulls the property package with it without further conditions; a divorce taken on a "weak" ground brings only the divorce, and the property will have to be either agreed or litigated separately and possibly in another country. The mechanics of the division itself and the protection of structures are covered by a [separate piece](https://wiki.private.law/en/divorce-property-division); the instrument that fixes the regime is the [prenuptial agreement](https://wiki.private.law/en/prenup-cross-border).

## Before filing and after: what is irreversible

**Before filing** everything is done that cannot be done afterwards. Habitual residence is verified and documented — the tenancy agreement, registration, utility accounts, the children's school, the tax return: it is habitual residence, not the passport, that most often decides a jurisdictional dispute. The calendar is counted: the ground under Article 3\(a\)\(v\) requires a year of residence, Article 3\(a\)\(vi\) requires six months where nationality is present; on the English side the same thresholds sit in s. 5\(2\)\(d\) and \(e\) DMPA 1973. Choice-of-court agreements are put in place where they are permitted: for maintenance under Article 4 of Regulation 4/2009, for the property regime outside the "divorce link" under Article 7 of Regulation 2016/1103. The three packages are costed separately for each candidate forum: status, money, property.

**After filing** four things are irreversible. The date of seising under Article 17 — it cannot be improved retrospectively, and a mistake in service can wipe out the priority. The ground of jurisdiction chosen — it determines the scope of competence under Article 5\(2\) of Regulation 2016/1103 and under point \(c\) of Article 3 of Regulation 4/2009. The declining of jurisdiction by the second court under Article 20\(3\) — it is final, and the case can no longer be restarted in the preferred country. And, finally, publicity itself: filing turns negotiations into litigation, and transfers of assets made after the first divorce consultation are examined by the courts under a magnifying glass.

| Forum | Ground of jurisdiction \(provision\) | What it decides together with the divorce, and what it does not | What attracts and what bites |
| --- | --- | --- | --- |
| England and Wales | s. 5\(2\)\(a\)–\(g\) DMPA 1973 as amended by SI 2019/519 from 31.12.2020; paragraph \(ca\) for joint applications from 06.04.2022 \(SI 2022/237\) | Divorce plus financial remedy orders, maintenance and pension sharing in one set of proceedings; foreign real estate only through enforcement at its situs | Attracts by judicial discretion, full disclosure and access to structures; bites through the discretionary stay under paragraph 9 of Schedule 1 DMPA 1973 and a minimum of 26 weeks under s. 1\(4\)–\(7\) MCA 1973 |
| England on sole domicile | s. 5\(2\)\(g\) DMPA 1973 — domicile of either spouse; a ground that did not exist in the Brussels IIa system | The same scope as above; recognition of the decision in the EU is not automatic | Opens London to those who do not live there; bites because the decision must be separately recognised in Germany \(§ 107 FamFG\) and in every EU State outside the Hague Convention of 1970 |
| EU court on common habitual residence | Article 3\(a\)\(i\) or \(ii\) of Regulation 2019/1111 | Divorce, the property regime under Article 5\(1\) of Regulation 2016/1103 without further conditions, ancillary spousal maintenance under point \(c\) of Article 3 of Regulation 4/2009 | The most complete ground: all three packages in one court; bites only in that it is equally available to both sides — the speed of filing decides |
| EU court at the respondent's residence | Article 3\(a\)\(iii\) of Regulation 2019/1111 | Full scope: the property package under Article 5\(1\) of 2016/1103 without an agreement, maintenance under point \(c\) of Article 3 of 4/2009 | A ground the respondent cannot use in the race; bites by moving the dispute into an unfamiliar procedural environment and another language |
| EU court on the applicant's one-year residence | Article 3\(a\)\(v\) of Regulation 2019/1111 — at least a year immediately before the application | Divorce yes; the property regime only with the agreement of the spouses \(Article 5\(2\)\(a\) of Regulation 2016/1103\) | The classic route of the relocated spouse; bites because without the other side's consent the property has to be litigated separately, possibly in another country |
| EU court on a national's six-month residence | Article 3\(a\)\(vi\) of Regulation 2019/1111; the lawfulness of the difference from the one-year period confirmed in C-522/20 \(10.02.2022\) | Divorce yes; the property regime only with the agreement of the spouses \(Article 5\(2\)\(b\) of Regulation 2016/1103\) | A passport of the forum halves the wait — a strong move for a returning national; bites through the same truncated scope |
| EU court on the common nationality of the spouses | Article 3\(b\) of Regulation 2019/1111; where two nationalities are held in common, both States have jurisdiction — C-168/08 Hadadi \(16.07.2009\) | Divorce and the property regime under Article 5\(1\) of 2016/1103 without an agreement; the link to maintenance must be checked against the proviso in point \(c\) of Article 3 of Regulation 4/2009 | Works without any presence in the country and without an "effective" connection; bites because the court may apply a law the family has long ceased to be connected with |
| Ireland | Article 3 of Regulation 2019/1111 with nationality replaced by domicile under Article 2\(3\) | Divorce; recognition of English divorces in Ireland runs under s. 5\(1\) and \(3\) of the Domicile and Recognition of Foreign Divorces Act 1986 | The only EU State where domicile operates as a ground of the Regulation; bites through its own substantive requirements for divorce |
| Denmark | National rules: under Protocol No 22 Denmark is not bound by Regulation 2019/1111 \(recital 96\) | Divorce under Danish rules; there is no automatic recognition under the Regulation in either direction | A fast administrative procedure; bites because the decision must be recognised in the rest of the EU under national rules or under the Hague Convention of 1970, to which Denmark is a party |
| Spain as a forum for non-judicial divorce | Articles 82 and 87 of the Spanish Civil Code \(Ley 15/2015, in force from 23.07.2015\): a notarial deed or a deed before the court clerk, not earlier than three months from the marriage | Divorce and the regulating agreement in one document; where there are minor children in the situation described in Article 81 of the Civil Code the route is closed | Fast and cheap where consent is complete; bites outside the EU, where the document may be characterised as a divorce obtained "otherwise than by means of proceedings" |
| France as a forum for non-judicial divorce | Articles 229-1 to 229-4 of the French Civil Code \(Law no. 2016-1547 of 18.11.2016, from 01.01.2017\): an agreement countersigned by counsel and deposited with a notary | Divorce and property arrangements by agreement; no public authority examines the substance of the case | The fastest European procedure; bites through the weakest recognition outside the EU — inside the EU it travels under the agreements regime of Article 65 of Regulation 2019/1111 with the Annex VIII certificate |
| Russia | Point 8 of part 3 of Article 402 of the Code of Civil Procedure — the claimant's residence in Russia or Russian nationality of at least one spouse; Article 160\(2\) of the Family Code for those living abroad | Under Article 24 of the Family Code the court divides the common property and fixes maintenance in the same case on application; foreign real estate is enforced at its situs | Cheap and fast, and Russian nationality gives entry without presence; bites because under Article 415 of the Code of Civil Procedure and Article 160\(3\) of the Family Code Russia recognises foreign divorces more broadly than foreign courts recognise its own decisions |
| UAE \(civil regime for non-Muslims\) | Federal Decree-Law No. 41 of 2022 on civil personal status, in force from 01.02.2023; predecessor — Abu Dhabi Law No. 14 of 2021 | Divorce without proof of harm, property and parental questions under the civil regime rather than under Sharia | Attracts Gulf residents by speed and predictability; bites through young case law and questions of recognition of the decision in Europe |
| A US state on domicile | Domicile or residence under the law of the particular state; the constitutional limit is Estin v. Estin, 334 U.S. 541 \(07.06.1948\) | Divorce yes; maintenance and division as against an absent spouse require personal jurisdiction over that spouse \(divisible divorce\) | A fast unilateral divorce on a weak connection; bites because the "cheap" divorce does not close the money part, which is then litigated in another country |

> 🍓 Divorce jurisdiction is determined by three provisions and one date. The date: Regulation \(EU\) 2019/1111 applies from 1 August 2022, and Regulation 2201/2003 applies to proceedings instituted earlier \(Article 100\). The first provision is Article 3: seven alternative grounds with no hierarchy \(C-168/08 Hadadi\), habitual residence is always singular \(C-289/20\), and nationality of the forum cuts the waiting period from a year to six months \(C-522/20\). The second is Article 20: the case goes to the court seised first, and a breach of lis pendens is not a ground for refusing recognition \(the closed list in Article 38, recital 56\). The third is Article 5 of Regulation 2016/1103: the property package follows the divorce automatically except on the "weak" grounds, where the agreement of the spouses is required; maintenance runs separately under Regulation 4/2009. England sits outside this system: s. 5\(2\) DMPA 1973 with sole domicile in paragraph \(g\), a discretionary stay under paragraph 9 of Schedule 1 instead of automatic lis pendens, and recognition in the EU that is not automatic but runs under the Hague Convention of 1970 \(twelve EU States\) or under national rules such as § 107 FamFG. And the rule that runs through all of it: a recognised divorce does not carry recognition of its financial consequences — s. 51\(5\) FLA 1986 and Estin v. Estin say the same thing.

## Questions and answers

### **Does the first-to-file rule actually work**

Inside the EU yes, and rigidly. Under Article 20\(1\) of Regulation 2019/1111 the court seised second must stay its proceedings of its own motion, and under Article 20\(3\), once the jurisdiction of the first court is established, it must decline jurisdiction. There is no discretion and no assessment of forum convenience. The moment of seising is fixed by Article 17: the lodging of the document with the court, provided the applicant has not subsequently failed to take the steps required for service. In relations with England the rule works in neither direction: Article 20 applies only between Member States, while the English court weighs the balance of fairness under paragraph 9 of Schedule 1 to the DMPA 1973.

### **What does a passport of the country one wants to litigate in give**

Two different entrances. The first is Article 3\(a\)\(vi\) of Regulation 2019/1111: a national of the forum needs six months of habitual residence instead of a year, and the Court of Justice in C-522/20 \(10 February 2022\) held that difference compatible with Article 18 TFEU. The second is Article 3\(b\): where both spouses hold the nationality in common, the court has jurisdiction with no residence at all, and where two nationalities are held in common the courts of both States have jurisdiction and no additional connection may be required \(C-168/08 Hadadi, 16 July 2009\). The price of the second entrance is a truncated link to maintenance under the proviso in point \(c\) of Article 3 of Regulation 4/2009.

### **Why did the English divorce stop being recognised automatically in the EU**

Because automatic recognition was a function of the Regulation, not a property of the decision. From 31 December 2020 Regulation 2201/2003 does not apply to new English cases, Brussels IIb does not apply to England at all, and two channels remain. The first is the Hague Convention of 1970, in force since 24 August 1975: it has twenty Contracting States, twelve of them EU Member States. The second is national law: in Germany § 107\(1\) FamFG requires the Land judicial authority to establish that the conditions for recognition are met, save where the decision was given by the State of the common nationality of the spouses. In Ireland, by contrast, the generous rule of s. 5\(3\) of the Domicile and Recognition of Foreign Divorces Act 1986 applies.

### **Are talaq and other religious divorces recognised in Europe**

Sometimes, and on strict conditions. A talaq pronounced in England is never effective: s. 44\(1\) FLA 1986 treats as effective only a divorce granted by a court of civil jurisdiction in the British Islands. A talaq abroad without any procedure runs under section 46\(2\): it requires effectiveness under the law of the country where it was obtained, domicile of both spouses there \(or of one there and of the other in a country that recognises such a divorce\) and the absence of a year of habitual residence of either spouse in the United Kingdom immediately preceding that date. Section 51\(3\)\(b\) adds the requirement of an official document. The reverse situation is the get: where the civil divorce has been obtained but the religious knot is not untied, the English court may under s. 10A MCA 1973 decline to make the divorce final until the parties confirm the steps taken to effect the religious dissolution.

### **Is a divorce executed before a notary or at a town hall recognised**

Inside the EU yes, through a separate channel. Article 65\(1\) of Regulation 2019/1111 recognises authentic instruments and agreements on divorce having binding legal effect in the Member State of origin without any special procedure; the certificate under Article 66 is issued in the form of Annex VIII and only where the State had jurisdiction under Chapter II. Some such divorces are characterised as "decisions" outright: in C-646/20 \(Grand Chamber, 15 November 2022\) the Court of Justice so characterised a divorce deed drawn up by a civil registrar and containing an agreement of the spouses confirmed before that registrar. Outside the EU it is harder: the less a public authority took part in the procedure, the higher the risk of characterisation as a divorce obtained "otherwise than by means of proceedings", with its requirement of domicile of both spouses.

### **The divorce is recognised abroad — does that mean maintenance and the division are recognised too**

No, and this is the most expensive standard mistake. Section 51\(5\) of the Family Law Act 1986 says expressly that nothing in the divorce recognition rules requires the recognition of a finding of fault or of any maintenance, custody or other ancillary order. The American doctrine of divisible divorce from Estin v. Estin, 334 U.S. 541 \(7 June 1948\) answers in the same way: a unilateral divorce ended the marriage but did not extinguish another state's maintenance decree, because the court had no personal jurisdiction over the absent wife. In the EU the split is built into the architecture: status runs under Regulation 2019/1111, maintenance under Regulation 4/2009, the property regime under Regulation 2016/1103, and they do not always converge in a single court.

### **What to check before filing where there are several fora**

Four things. The evidence of habitual residence — it, and not the passport, decides a jurisdictional dispute, and it has to be gathered in advance. The calendar of thresholds: a year under Article 3\(a\)\(v\), six months under Article 3\(a\)\(vi\), the same thresholds in s. 5\(2\)\(d\) and \(e\) DMPA 1973. The scope the chosen ground confers: under Article 5\(2\) of Regulation 2016/1103 the "weak" grounds require the agreement of the spouses for the property package. And choice-of-court agreements where they are permitted: Article 4 of Regulation 4/2009 for maintenance \(except child maintenance under 18 — Article 4\(3\)\), Article 7 of Regulation 2016/1103 for the property regime. The order of these decisions relative to the rest of the family perimeter is set out in the [family cluster map](https://wiki.private.law/en/family-hub).

*This material is expert analysis and does not constitute individual legal advice.*

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## FAQ

### Does the first-to-file rule actually work

Inside the EU yes, and rigidly. Under Article 20(1) of Regulation 2019/1111 the court seised second must stay its proceedings of its own motion, and under Article 20(3), once the jurisdiction of the first court is established, it must decline jurisdiction. There is no discretion and no assessment of forum convenience. The moment of seising is fixed by Article 17: the lodging of the document with the court, provided the applicant has not subsequently failed to take the steps required for service. In relations with England the rule works in neither direction: Article 20 applies only between Member States, while the English court weighs the balance of fairness under paragraph 9 of Schedule 1 to the DMPA 1973.

### What does a passport of the country one wants to litigate in give

Two different entrances. The first is Article 3(a)(vi) of Regulation 2019/1111: a national of the forum needs six months of habitual residence instead of a year, and the Court of Justice in C-522/20 (10 February 2022) held that difference compatible with Article 18 TFEU. The second is Article 3(b): where both spouses hold the nationality in common, the court has jurisdiction with no residence at all, and where two nationalities are held in common the courts of both States have jurisdiction and no additional connection may be required (C-168/08 Hadadi, 16 July 2009). The price of the second entrance is a truncated link to maintenance under the proviso in point (c) of Article 3 of Regulation 4/2009.

### Why did the English divorce stop being recognised automatically in the EU

Because automatic recognition was a function of the Regulation, not a property of the decision. From 31 December 2020 Regulation 2201/2003 does not apply to new English cases, Brussels IIb does not apply to England at all, and two channels remain. The first is the Hague Convention of 1970, in force since 24 August 1975: it has twenty Contracting States, twelve of them EU Member States. The second is national law: in Germany § 107(1) FamFG requires the Land judicial authority to establish that the conditions for recognition are met, save where the decision was given by the State of the common nationality of the spouses. In Ireland, by contrast, the generous rule of s. 5(3) of the Domicile and Recognition of Foreign Divorces Act 1986 applies.

### Are talaq and other religious divorces recognised in Europe

Sometimes, and on strict conditions. A talaq pronounced in England is never effective: s. 44(1) FLA 1986 treats as effective only a divorce granted by a court of civil jurisdiction in the British Islands. A talaq abroad without any procedure runs under section 46(2): it requires effectiveness under the law of the country where it was obtained, domicile of both spouses there (or of one there and of the other in a country that recognises such a divorce) and the absence of a year of habitual residence of either spouse in the United Kingdom immediately preceding that date. Section 51(3)(b) adds the requirement of an official document. The reverse situation is the get: where the civil divorce has been obtained but the religious knot is not untied, the English court may under s. 10A MCA 1973 decline to make the divorce final until the parties confirm the steps taken to effect the religious dissolution.

### Is a divorce executed before a notary or at a town hall recognised

Inside the EU yes, through a separate channel. Article 65(1) of Regulation 2019/1111 recognises authentic instruments and agreements on divorce having binding legal effect in the Member State of origin without any special procedure; the certificate under Article 66 is issued in the form of Annex VIII and only where the State had jurisdiction under Chapter II. Some such divorces are characterised as "decisions" outright: in C-646/20 (Grand Chamber, 15 November 2022) the Court of Justice so characterised a divorce deed drawn up by a civil registrar and containing an agreement of the spouses confirmed before that registrar. Outside the EU it is harder: the less a public authority took part in the procedure, the higher the risk of characterisation as a divorce obtained "otherwise than by means of proceedings", with its requirement of domicile of both spouses.

### What to check before filing where there are several fora

Four things. The evidence of habitual residence — it, and not the passport, decides a jurisdictional dispute, and it has to be gathered in advance. The calendar of thresholds: a year under Article 3(a)(v), six months under Article 3(a)(vi), the same thresholds in s. 5(2)(d) and (e) DMPA 1973. The scope the chosen ground confers: under Article 5(2) of Regulation 2016/1103 the "weak" grounds require the agreement of the spouses for the property package. And choice-of-court agreements where they are permitted: Article 4 of Regulation 4/2009 for maintenance (except child maintenance under 18 — Article 4(3)), Article 7 of Regulation 2016/1103 for the property regime. The order of these decisions relative to the rest of the family perimeter is set out in the family cluster map.

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## Factual claims

- Regulation 2201/2003 was repealed with effect from 1 August 2022 (Article 104(1)), but it continues to apply to proceedings instituted and documents drawn up before that date (Article 100(2)).
- Denmark does not take part in the EU family regulations: under Articles 1 and 2 of Protocol No 22 it is not bound by Brussels IIb and is not subject to it (recital 96).
- Article 3 gives an exhaustive but broad list.
- Three refinements from the case law of the Court of Justice are worth keeping in mind:
- Outside the Regulation — by convention or by national law.
- England — under the Family Law Act 1986.
- American law reached the same point through the constitution.

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