Litigating across the pond – the latest developments on divorce jurisdiction and forum issues – the view from our London and San Diego offices

As the relationship between our two nations is thrown increasingly under the spotlight, in this article we look at why this issue matters for divorcing clients with international connections – England v California.

For clients with connections to both England and California, jurisdiction is not merely procedural. It can have a very real and significant impact on outcome. 

Which country to choose and how to choose it?

'Jurisdiction and forum conveniens on divorce' – does that sound like a dry subject? Maybe, but maybe not if you have international connections in each country and are contemplating divorce. By design, cross border divorce/finances cases turn on 'where' as much as on 'what.' 

Which country you choose for your divorce matters, because seizing jurisdiction for the divorce (certainly in England and Wales) provides automatic jurisdiction for the court to handle the finances with all of its 'discretionary system' consequences. If the divorce takes place outside of England, clients may subsequently be able to mount a free-standing financial claim under a different statute (Part III of the Matrimonial and Family Proceedings Act 1984), but certain criteria need to be met. The English court has the power to make a wide range of financial orders where jurisdiction has been seized and if England is deemed to be an appropriate venue.

In England, divorce jurisdiction derives from domestic law, primarily the Domicile and Matrimonial Proceedings Act 1973, and applicants must be able to show at least one 'habitual residence' or 'domicile' jurisdictional basis. Your jurisdictional ground, whether habitual residence or domicile, must be present at the time of the application. Pre-Brexit, time used to be critical in jurisdiction races with other European countries. That has now fallen away, but when considering if there could be a divorce in more than one place, timing can still be vital. To establish jurisdiction in England, the key is to understand what constitutes habitual residence (broadly the place where a person has established on a fixed basis, their centre of interests) and what defines the elusive concept of 'domicile' – its origin, how it can be chosen, how it can be lost, and what a client's default domicile is. Domicile is acquired at birth or by a permanent move plus an intention. And at the time of going to print, Court of Appeal's judgment in Ferrara v Ferrara is awaited. This, we hope will clarify the law relating to domicile of choice when it comes to a person's 'permanent' home and their intentions for it to be permanent.

In California, divorce jurisdiction is governed by statutory residency requirements. Under Family Code section 2320, at least one party must have been a resident of California for six months and of the county for three months immediately preceding the filing of a petition for dissolution. Without satisfaction of this requirement, the Court lacks jurisdiction to dissolve the marriage. California law also draws an important distinction between subject matter jurisdiction and in rem jurisdiction. Dissolution proceedings are properly characterized as in rem, with the marital status itself constituting the res. As the Court of Appeal explained in Zaragoza v. Superior Court (1996) 49 Cal.App.4th 720, the residency requirement goes to the Court’s jurisdiction over marital status, not to its fundamental competence to hear family law matters. This distinction is significant because, unlike subject matter jurisdiction, in rem jurisdiction may be waived if not timely challenged.

Procedural timing therefore assumes particular importance. California Rules of Court, rule 5.63, requires any challenge to dissolution jurisdiction based on residency to be raised within the time permitted for filing a response to the petition, failing which jurisdiction may be deemed accepted. Courts will consider not only pleadings but also the parties’ conduct in determining whether jurisdiction has been consented to, and engagement with the California process may preclude later attempts to contest forum.

Although the statute refers to 'residency,' California case law makes clear that, for dissolution purposes, residency is synonymous with domicile, requiring both physical presence and an intention to remain indefinitely. A client may maintain multiple residences, including abroad, but may have only one domicile at any given time. Temporary absences do not displace domicile where the evidence demonstrates an ongoing intention to return to California as a permanent home. Taken together, these principles underscore that California is not merely a residency based jurisdiction, but one in which domicile, intent, timing, and conduct play decisive roles for internationally mobile clients. 

For internationally mobile clients, California law presents both opportunity and risk. As with England, early and informed strategic advice is essential to avoid unintended forum consequences and to ensure that jurisdiction is seized - or resisted - in the forum best aligned with the client’s objectives.

The financial consequences of choosing a jurisdiction for your divorce

These are bespoke to your situation but the consequences can be stark if, as in England, the divorce is the gateway to financial applications. The English court has the power to make various financial orders on divorce - periodical payments (maintenance / alimony), lump sum orders (capital); property adjustment orders (dealing with the home and other real property); pension sharing orders and it can vary trust settlements in certain circumstances. The overarching objective is 'fairness. Neither party is to be discriminated against based on their role within the marriage (breadwinner v. homemaker). and the court has a broad discretion. So, whilst the court  may have regard, and in some cases attach significant weight to other factors, for example, a prenuptial agreement the parties signed in another country, or the existence of a marital property regime to which the parties are directly or indirectly tied elsewhere, the courts will only be bound by the law of England and Wales. It matters not (aside from future enforcement issues) where property is located or where the marriage took place. 

In exercising its discretion, the English court has regard to a number of statutory factors, including income, earning capacity, resources, standard of living during the marriage, contributions, rarely (but increasingly) conduct during the marriage such that it has a financial impact, and the length of the relationship. The assets are divided and financial provision ordered in accordance, predominantly, with the principles of need (the determinative factor) and sharing, starting from a benchmark of equal division, although only matrimonial property is shared and departures from equality can be justified. This principle was recently underscored by the Supreme Court in the case of Standish v Standish [2025] USKC 26. Non-matrimonial property (pre-acquired assets, inheritance, for example) is not shared (although it can be diverted to meet needs) but it such assets are, in some circumstances, capable of being 'matrimonialised'. There is an overarching aim to achieve a 'clean break;’ to enable the parties to reach financial independence and the first consideration above all others is the welfare of any children of the family (under 18). As mentioned, the system is discretionary and hence,  uncertain. There is no 'one-size-fits-all' rule book, no codification, no marital property regime. The outcome (if litigated) is uncertain. So, you need to choose right.

By contrast, the financial consequences of divorce in California arise from a fundamentally different legal architecture. California operates within a codified community property regime. Property acquired during marriage is presumptively community property and is divided equally upon dissolution, unless a statutory exception applies. Property acquired before marriage or by gift or inheritance, is generally characterized as separate property and is not subject to division. The Court’s discretion in dividing assets is therefore more constrained than in England. Equal division of the community estate is the statutory starting point and, in most cases, the outcome – subject to defined exceptions such as reimbursement claims, misappropriation claims, educational debt allocation, or other statutory adjustments. There is no discretionary jurisdiction to redistribute non-community property by reference to need or fairness. Spousal support in California is governed by statute and guided by enumerated factors, including the parties’ respective incomes, earning capacities, respective resources, length of the marriage, and marital standard of living. While the Court retains jurisdiction in fixing support, that discretion operates within a structured statutory framework rather than a broad fairness-based mandate. 

As with England, the choice of forum is critical. Once jurisdiction is secured, the governing financial regime largely dictates both the range of available orders and the ultimate result.

Strategic considerations for high-net-worth transatlantic clients

For internationally mobile, high net worth clients, the choice between England and California can be profound.  

For clients with significant pre-marital wealth, inherited assets, trust interests, international business holdings, or markedly unequal earning capacity, forum selection may materially alter financial exposure. The divergence between a discretionary redistribution model and a codified equal-division regime can be stark. 

Timing, domicile analysis, and procedural conduct can determine whether a client benefits from the certainty of a structured community property framework or is subject to flexibility – and unpredictability – of a discretionary fairness framework.

In cross-border cases, jurisdiction is not an afterthought. It is often the first and most consequential strategic decision. Early, coordinated advice across jurisdictions is essential to ensure that forum is secured, or resisted, in alignment with the client’s objectives.  

Mitigation – planning ahead

Watch out for the next article our series which looks at strategic steps which transatlantic clients can take to mitigate potential problems associated with divorce through prenuptial or postnuptial agreements, trusts and settlements and tax planning.