Diplomatic relations meet Family relations

London is one of the most important diplomatic centres in the world.  But London also has a reputation as the “global divorce capital”, in part due to the reputation of its courts for assisting the financially weaker party.  

Family cases involving diplomatic immunity, particularly those relating to divorce and the consequent financial arrangements, are increasingly prevalent.  This article explores what happens when these two worlds collide. 

What is diplomatic immunity?

Diplomatic immunity is a legal status which prohibits the courts of host states from exercising jurisdiction over foreign diplomats, and certain members of their families, for both their official, and to a significant extent their personal, activities.  That immunity is subject to various exemptions and limitations based on a number of factors, such as the rank of the diplomat and the activity in question.

The key treaty globally is the Vienna Convention of Diplomatic Relations 1961 (the “VCDR”), applied in the UK by the Diplomatic Privileges Act 1964.  The purpose of diplomatic immunity is functional; it does not exist to benefit the individual diplomats, but to ensure the efficient and effective performance of their diplomatic missions. 

Diplomatic immunity should not be confused with impunity. A popular misconception has arisen that diplomatic immunity is a “get out of jail free card,” that allows diplomats to do as they please.  The reality is that the Vienna Convention specifically obliges diplomats to conform with national and local laws and regulations.  If diplomats do break local rules there are a number of steps the host state can take, including requesting waivers of immunity and expelling the diplomat in question.  In the most serious of cases, the host state can even break off diplomatic relations.

Diplomatic immunity issues often pose challenges to local courts. The judiciary are often unaccustomed to granting privileges or a special status to parties simply by virtue of their profession, and sometimes go so far as to reject constraints.  On the other hand, those who understand and value the importance of immunity risk adopting a broad-brush application, which fails to take into account the many nuances of the VCDR. Nowhere is this tension more apparent than in the Family Court.

When can divorce proceedings take place in England and Wales?

The jurisdictional criteria for divorce in England and Wales are very wide. The result is that international diplomats stationed here could well find themselves engaged in family proceedings in this jurisdiction.

How are finances dealt with on divorce in England and Wales?

The court can make a wide range of orders in respect of financial issues following on from a divorce, including for maintenance, lump sum payments, transfers of worldwide property, orders for the sale of worldwide assets and pension sharing orders.

Judges are given wide discretion to decide the outcome of financial claims; there are very few mathematical rules or formulae. A list of factors which the judge must consider is set out at section 25 of the Matrimonial Causes Act 1973, and it includes: the financial resources and needs of the parties; their standard of living; the contributions each party has made to the welfare of the family; and so on. A judge must determine what would be a ‘fair’ result by reference to those factors.

Ultimately, the court has a free hand to redistribute all the assets of either party (including those inherited or acquired before marriage, and irrespective of whether the assets are held in either party’s sole name).

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

The court in England and Wales 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”. The court must first grant leave to a party to bring such a claim, once it is satisfied that the jurisdictional criteria are met and there are “substantial” grounds for making a claim.  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?

Where diplomatic immunity is raised in divorce or related financial proceedings, 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 as a family during their marriage in England. When the marriage broke down, 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. Despite a Foreign and Commonwealth Office certificate having been issued confirming the husband's position, his application was unsuccessful, the lower court finding that his diplomatic appointment was on the facts an artificial construct motivated by an intention 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 for financial provision 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 in England or Wales as a host state, which includes looking at the following factors:

1. 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. It may be relevant to look at the individual’s links with the state which they claim as home and where any of the following predominantly take place: payment of the diplomat’s taxes, participation in social security schemes, ownership of real property etc.
2. Prospect of the diplomat being posted elsewhere – a diplomatic should be regarded as permanently resident if their appointment in their host state is likely to continue for more than 5 years, unless the Head of Mission states that the longer stay in the host state is a requirement of the sending state and not a result of personal considerations.
3. Local recruitment – a diplomat who is locally engaged is presumed to be permanently resident in their host state unless the Head of Mission concerned shows that they are going to return to their own country or to proceed to a third country immediately on the termination of their appointment in the host state.
4. 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 from the time of her marriage unless the Head of Mission shows that, in addition to her satisfying the other criteria, there remains a real prospect in view of the special circumstances of her case 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 being brought against them here. However, immunity will not be granted to diplomats who have become permanent residents of England and Wales, 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

Ultimately, 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 for the purposes of any divorce and financial remedy proceedings which may be brought against them.

One protective measure which foreign diplomats should consider upon their posting to England and Wales would be a bespoke pre- or post-nuptial agreement.  A nuptial agreement would protect against the scenario where a diplomat is deemed permanently resident in England and Wales 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, reducing the scope for dispute further down the line.  They are an effective tool for protecting pre-acquired assets, inherited or gifted wealth, and business interests, for example.

International couples can also include a “jurisdiction clause” in their nuptial agreement, setting out which country’s courts should deal with any future divorce and financial proceedings – such clauses are not binding on the English Court but they can be influential if a dispute arises as to where a divorce should take place.

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 or enforceable 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.

Please note this content was originally published in The Diplomat Magazine, see here.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, April 2025