Diplomatic relations meet Family relations

What about where a divorce has been obtained in the diplomat’s sending state?

The court here can in some circumstances make financial orders where a couple have already divorced and received financial provision abroad (e.g. in a diplomat’s sending state), under Part III of the Matrimonial and Family Proceedings Act 1984.

The intention of this law is to alleviate inadequate provision following a foreign divorce - it is not supposed to provide for a ‘second bite of the cherry.’ When applying this test, the court will consider the extent of the couple’s connections with England and Wales and any financial provision that has already been made in the foreign jurisdiction.

Diplomats who have divorced overseas must be alive to the possibility of a financial claim being brought by their former spouse in England and Wales during their posting here.  Or it may be in the diplomat’s own interests to pursue a financial claim in England and Wales following a foreign divorce.

What approach does the Family Court take to financial cases involving diplomatic immunity?

The Family Court’s first step will be to determine whether the foreign diplomat (or the relevant member of their family) is a ‘permanent resident’ of England or Wales. Under Art 38 (1) of the VCDR, if a diplomat becomes a permanent resident of their receiving state, they will only be able to claim immunity in respect of official acts performed in the exercise of their diplomatic role. Family Court proceedings will almost never relate to diplomatic functions.

In the case of Estrada v Al Juffali [2016] EWCA Civ 176 (Fam), the husband was a wealthy Saudi Arabian businessman, and the wife was an American citizen. The parties shared two children and had lived together during their marriage in England. The husband divorced the wife in Saudi Arabia by pronouncing Talaq.   The wife then applied to the English Family Court for financial provision following an overseas divorce under Part III.

The husband sought to strike out the wife’s financial claims by asserting diplomatic immunity, relying on a very recent appointment as the Permanent Representative of St Lucia to the International Maritime Organisation. His application was unsuccessful, the lower court finding that his diplomatic appointment was an artificial construct to defeat the wife’s financial claims. The husband then appealed.

The Court of Appeal upheld the dismissal of the husband’s diplomatic immunity claim, predominantly on the basis that he was a permanent resident of England and that the wife’s application under Part III was completely unrelated to the husband’s diplomatic role in the International Maritime Organisation.

The case provides helpful guidance on how the Family Court should determine permanent residence, which includes looking at the following factors:

a) The intention of the individual – a diplomat should be regarded as permanently resident unless they are going to return to the sending state as soon as their appointment in their host state ends. The court will look at factors such as payment of taxes, participation in social security schemes, ownership of real property etc.

b) Prospect of the diplomat being posted elsewhere – a diplomat should be regarded as permanently resident if their appointment in their host state is likely to continue for more than 5 years.

c) Local recruitment – a diplomat who is locally engaged is presumed to be permanently resident in their host state unless the Head of Mission shows that they are going to return to their own country or to a third country on the termination of their appointment in the host state.

d) Marital status – a female diplomat married to a permanent resident of the host state is presumed herself to be permanently resident in the host state unless there remains a real prospect that she will be posted as a normal career member of the service.

Points a) – d) above will obviously not apply to the majority of diplomats who have been sent to England or Wales for a finite period of time in order to carry out their work before returning to their sending state or moving on to another receiving state. Such diplomats will rightfully be able to claim immunity to financial remedy proceedings here. However, immunity will not be granted to diplomats who have become permanent residents, as financial claims in the Family Court are unrelated to their diplomatic functions.

Take away: protect your position with a pre- or post-nuptial agreement

Foreign diplomats posted in England and Wales can be assured that the Family Court here will respect diplomatic immunity provided that the necessary criteria under the VCDR are met. This is positive, as the concept of immunity is critical for London to retain its status as an international hub. However, caution must be taken by foreign diplomats to ensure that they do not become permanently resident here if they wish to safeguard their immunity.

One protective measure would be a bespoke pre- or post-nuptial agreement.  A nuptial agreement would protect against the scenario where a diplomat is deemed permanently resident here and is therefore unable to claim immunity in respect of divorce and financial remedy proceedings.

Nuptial agreements allow couples to choose how their assets will be divided on divorce, and indeed which country’s court should deal with any future proceedings (such clauses are not binding, but are influential), reducing the scope for dispute further down the line.  

Strictly speaking, English judges do have the power to ignore nuptial agreements and substitute their own order on divorce if they think it fair to do so. Nuptial agreements are not binding in the same way as a commercial contract in England and Wales. That said, it would be very unusual nowadays for a judge to do so, and so nuptial agreements are certainly still worth considering. Specialist advice should be taken by foreign diplomats in this regard at the earliest opportunity.