The greater the assets the parties have at stake the more likely it is that once the marriage looks to be failing they will look into their options in different countries. ’Forum shopping’ as it has become known is now routine. Generally speaking a high earning, large asset holding spouse will want to avoid proceedings in England and Wales. By the same measure, the spouse who is looking to share in the other’s wealth is more likely to favour England and Wales.
So how does this ‘forum shopping’ work?
Where the couples have connections with another member state of the European Union (other than Denmark, which has opted out of the relevant EU laws) the position is a simple case of the country in which proceedings are validly issued first will have jurisdiction over the divorce. A divorce petition can be issued in a relevant country only if the qualifying conditions are met. These conditions, so far as relevant to a contested set of proceedings are as follows:
(a) the spouses are both habitually resident in that country;
(b) the spouses were last habitually resident there and one of them still resides there;
(c) the respondent is habitually resident there;
(d) the applicant is habitually resident there and has been so resident for at least a year immediately before the application was made;
(e) the applicant is habitually resident there and has been so resident for at least 6 months immediately before the application was made AND is a national of the country or, in the case of the UK or Ireland, domiciled there (‘domicile’ has a technical meaning in law which is not the same as living there); or
(f) the country is that where both parties have their nationality or ‘domicile’.
Once proceedings have been validly commenced in a relevant EU state no other EU state is permitted to entertain the proceedings. Hence the ‘race’ to be first to issue.
Where non-EU countries are involved the position is more unpredictable. The courts in England will need to consider whether the English proceedings should continue or whether they should be halted, or ‘stayed’ in the jargon, to allow proceedings in another country to continue. The court has to consider which jurisdiction is the most appropriate one to hear the case based on all the circumstances and the parties’ connections with both countries (this is called determining the ‘forum conveniens’ or ‘forum non conveniens’). The foreign court will carry out a similar process according to its own law. Sometimes the law to determine jurisdiction applied in the England and the other country is the same (e.g. Hong Kong) but often is is slightly different, with the risk that there will be inconsistent decisions in the two countries.
Usually the courts of different jurisdictions respect each other’s decisions as to jurisdiction but this is not always so and it is possible for proceedings to continue in two jurisdictions in which case it becomes a race against time to see which jurisdiction brings the marriage to an end first. Sometimes, however, the English High Court may issue an injunction preventing the other party from pursuing the proceedings in the other jurisdiction but such an injunction only has teeth of the other party or his or her assets are within the control of the English High Court.
These sorts of disputes will continue to take place more and more often. In many cases the parties will have the choice of two and sometimes even three or four different potential jurisdictions to choose from. If the parties have sufficient wealth at stake they will look at their options in the different jurisdictions to see which is most favourable to them.
If your family has international connections it is well worth taking expert advice as to your options well before the race for divorce jurisdiction begins. I am regularly instructed by individuals in England on such issues but particularly by those based overseas who are trying to decide whether to bring proceedings in England or elsewhere.
Contact me if you want to discuss this further on an entirely confidential basis.