Married couples who are based internationally may well have a choice as to jurisdiction should they decide to divorce, i.e. a sufficient link exists with several countries and divorce proceedings could be instigated in any one of those. Different countries obviously have different divorce, ancillary relief and children law. The same set of facts may produce very different outcomes depending upon which country’s law is applied to those facts. Choosing the best jurisdiction or “forum” for a particular case is a very important decision.
England and Wales has become a country where individuals from many countries come to live and work. London, in particular, as a major commercial and financial centre, attracts wealthy individuals and their employers. Many people will only stay here for a period of two years or so. Many will be accompanied by their spouses and children. They may well not appreciate that the English Courts can exercise their jurisdiction not only over any disputes which may arise in relation to children but also in relation to divorce and the financial consequences provided that certain jurisdictional criteria are met. The criteria depend on whether one is dealing within the EU or outside the EU:-.
Within the EU: the Brussels II Convention rules on jurisdiction apply-
The English Court will have jurisdiction in relation to divorce and ancillary relief in the following circumstances:
Both parties are habitually resident in England (which covers Wales); or Both parties were last jointly habitually resident in England and one still resides here; or The Respondent is habitually resident in England; or The Petitioner is habitually resident here and has resided here for the past 12 months; or The Petitioner is domiciled and habitually resident here and has resided here for at least the last 6 months; or Both parties are domiciled here.
The country in which proceedings are first brought has exclusive jurisdiction, and no challenge is possible, i.e. the choice of the first to file the divorce proceedings prevails.
In relation to children, the general rule is that jurisdiction is based on a child’s habitual residence. There are exceptions to this general priority of habitual residence where the child has lived previously in another member state, in cases of child abduction, in cases where there may be a closer connection with another member state, where it is impossible to determine the habitual residence of a child and where the Court which has jurisdiction of the matter transfers the case to a country better placed to deal with it.
As between the English Courts and the Scottish & Northern Irish Courts –
The English Court must stay divorce proceedings if, before the beginning of trial or first trial, one party applies for a stay and there are already divorce proceedings in existence in a related jurisdiction, i.e. Scotland, Northern Ireland, Jersey, Guernsey, Alderney, Sark and the Isle of Man.
Outside the EU (and Denmark) -
When one party suggests that the English court is not the appropriate forum, and that another, non-EU country, is more appropriate, the court may decide to stay a divorce petition issued in England and Wales if:
proceedings are continuing in another jurisdiction; and the balance of fairness (including convenience) as between the parties means that it is appropriate for the proceedings in the other jurisdiction to be disposed of before further steps are taken in the English proceedings. In making a decision, the court will consider the possible advantages and disadvantages of the different forums. Important factors are likely to include:-
which forum was involved in the case first and which is most likely to reach a final decision first; the whereabouts of the family assets (whether they are wholly or mainly in England); and whether the foreign proceedings will produce a result which is contrary to English concepts of justice.
The jurisdictional sweep of the English Courts may come as a major surprise to, for example, two Italian bankers who come from Italy to pursue a posting working in London whose marriage unfortunately runs into major difficulties after they have been here for a year, because they will find that one can divorce the other under English law here.
It might be thought that this would be of little significance, as all European countries would be bound to have a similar divorce law and similar financial consequences but this is far from the case.
