You are here

Forum Choice

How do courts decide which country should deal with our family dispute?

Within the countries of the United Kingdom, there are mandatory rules to determine which country’s courts should deal with the divorce or other family proceedings.­ It is often based on the place of the last residence.

With a forum dispute with a country outside of the European Union, most countries decide on the basis of which country has the closest connection with the family.­ They take into account many factors.­ It is not usually decided on the basis of who issues first.­ In most international families, it is often clear with which country the family has the closest connection.­ The English court has a discretion in accepting or declining jurisdiction on the basis that England or the other non-EU country has the closer connection.­

What sort of factors are considered for closeness of connection?

Nationality, residence, domicile, any agreements about which law or which country should deal with matters concerning the family, location of the wedding, the country with which each had the closest connection before the wedding and during the marriage, where the primary financial assets are situated including pensions, where the children are at school, remedies available in the foreign court, the cultural background of the parties, prospects of enforcement of any orders, existence of marital agreements, the availability of legal aid and other similar factors.­

What is the difference within Europe?­ How is it decided which country will deal with a divorce?­

If two European Union countries have jurisdiction e.g. UK and France, it depends only on where the proceedings are issued first.­ That country’s courts will then usually deal with all matters concerning the family including divorce, and ancillary financial matters.­ It is irrelevant if there is an agreement between the couple about where the divorce should be.­ It is irrelevant if the country where the divorce proceedings are issued first in time has a lesser connection with the family than another EU country.­ It is simply who is first to issue proceedings.­ As the financial outcomes on relationship breakdown between two European countries can be dramatically different i.e. they can benefit one spouse significantly and disadvantage the other, it means that urgent and specialist advice, including advice from abroad, must be taken to decide where to issue and then to issue very fast.­ This law of first to issue (“lis pendens”) securing the country to deal with the divorce proceedings is known as Brussels II.

Sadly, this means that often it is very unwise to suggest a negotiated settlement or mediation until proceedings have been issued to secure the more favourable jurisdiction.­ Even more sadly, it means sometimes that it may be unwise to suggest marriage counselling until proceedings have been issued.­ As deciding the best country in which to issue often requires advice from lawyers in two countries, which requires private, upfront funding of costs, the financially weaker spouse sometimes loses out badly and often loses the race to issue and so has the disadvantageous financial outcome. ­These are most unfortunate consequences of this very unsatisfactory law.

There are a few countries outside of Europe which also decide which country should deal with a case on the basis of where the proceedings were issued first.­ Local advice should always be taken to find out if this occurs.

Can proceedings started in one country be transferred to another?

Yes, the English court can and does sometimes transfer the entire proceedings or part of proceedings to another country if the courts of the other country are better placed to deal with issues e.g. interpretation of local law or practice.

This cannot occur on divorce within the European Union even if the divorce proceedings were in one country because they were issued first in that country and yet another country clearly has the much closer connection and is better placed to decide issues.­ Transfers of general financial proceedings between European Union states cannot occur.­ This is another primary reason why taking urgent advice and action is essential. ­

However in certain circumstances, it is compulsory for courts to transfer maintenance claims (defined as “needs”) where another country has prior jurisdiction for maintenance or the couple have years previously agreed that the other country should deal with maintenance.­ Issuing first for divorce in these circumstances does not ensure all the financial issues are resolved in that country.

How differently are financial issues dealt with abroad?

Some countries operate a system informally known as community of property.­ In its basic form, the assets accruing during the marriage up until the date of separation are divided equally.­ Premarital and post separation assets and all inheritances and gifts are taken out of account.­ This inflexibility can sometimes produce, to English perceptions, quite unfair outcomes.­ It gives no account to commitments made within a marriage often to one spouse’s prejudice e.g. giving up a career for child raising or moving countries to be with the other spouse.­ It gives no account of the needs of the parent, often not the primary earner, who has responsibility for day-to-day care of the children as an ongoing prejudice to their own career and earning.

Some countries have an additional discretionary lump sum on top to produce a more just outcome.­ Often however this adjustment is quite a small amount.

Maintenance may be in addition to this division.­ However an increasing number of countries do not grant spousal maintenance for more than a few years after the divorce.­ This can be irrespective of the length of the marriage, the disparity in the financial circumstances of the spouses, and the inability of one spouse post separation to recover earning capacity and after the commitments to the marriage.­ This can seem very unfair.

Some countries apply not their own domestic law but the law of the country with which the couple have the closest connection, known as “choice of law” or “applicable law”.­ England only ever applies English law.­ There is much pressure from Brussels on the United Kingdom to adopt applicable law but it is strongly opposed.­ Most English lawyers consider applying the law of other countries makes settlements harder to achieve and more costly, even more uncertain and slower.­ Moreover continental European countries using applicable law do not do so consistently or comprehensively; applying their own domestic law to procedural matters and anecdotally applying their own domestic law if they find it difficult to ascertain or understand the foreign law.­

Some countries have binding pre-marriage agreements as a cultural and legal norm.­ Sometimes these are entered into without separate independent legal advice, without disclosure and without any opportunity of reviewing what is fair.­ Nevertheless these countries very rarely deviate from these sorts of agreements at a time of subsequent divorce, irrespective of the changes that may have subsequently occurred and however unfair the agreement may now appear with changing circumstances.­ It often works most harshly on women, in English perceptions.

Ascertaining the assets to be divided in some countries, even if to be divided equally, can be hard work, very frustrating and often simply impossible.­ Some countries rely on self disclosure without any opportunity of corroboration or investigation.­ Some countries have minimal investigation powers.­ Some countries ignore assets put within trusts or companies, even if done so to evade marital responsibilities.­ Some countries ignore offshore assets i.e. resources outside the country.­ In short, ascertaining disclosure reliably in some countries is impossible, leading to much frustration and injustice.

Many international spouses have to balance the predictability, certainty, low legal costs and possibly inadequate disclosure of some countries, with the more flexible fairness-discretion, more tailor-made, yet uncertain outcomes, the greater likelihood of full disclosure, higher legal costs and possibly greater financial settlements in countries such as England.

In countries with any significant Islamic influence, the division of marital assets is often based on mahr, dowry or similar arrangements reached at the time of the marriage and with reference to the Qur’an.­ Whilst to some observers the arrangements can seem very unfair especially to the woman, Muslims including some female Muslims argue its fairness.­ Nevertheless it is a feature that has to be taken into account in comparing financial outcomes between countries with which international families have a connection and choosing where a divorce will take place.

Generally England is perceived as a very generous country with applicant wives obtaining substantial orders.­ London is described as “the divorce capital of the world”, in part because of its very multinational population but in part due to the very substantial settlements redistributing assets and making orders against assets held behind trusts, companies and otherwise hidden.­ With many international families having some connections with England, it has been a forum for many big money divorces in recent years.­ There are much lower divorce settlements abroad.

Just because one of us is living in England or we were married in England, does this mean that the divorce should be here?

No.­ Many international families find at a time of relationship breakdown that two or more countries can deal with issues regarding their family.­ Whilst the laws about getting a divorce are becoming fairly similar across many countries, the financial outcomes accompanying the divorce can be dramatically different.­ It is very important to find out which is the best country for you for any proceedings.­ An outcome in one country may be highly favourable to an applicant, perhaps the wife, alternatively to the paying party, perhaps the husband.­ There is much unfairness and injustice to international families by the wide disparity of final financial orders made in different countries.­ Specialist legal advice should be taken at a very early stage in the breakdown of the relationship about where any divorce or other family proceedings should take place. ­

Disputes about which country should deal with a divorce and related family issues are known as “forum disputes”.­ Taking advice about the best, most advantageous country for a divorce or other family proceedings is known as “forum shopping”.­ These forum disputes can take very many months from commencement of the application to the end of the final hearing and are often very expensive, public and very divisive for future parenting arrangements and resolving other issues. Take care before embarking on a forum dispute.­ But the differences in outcomes between countries can be substantial even for families of modest wealth.

How do I decide where to issue family court proceedings?

First, it is necessary to ascertain what are the countries in which proceedings could be issued.­ This includes states in some countries which have a federal basis.­ This is what is known as the countries with jurisdiction. ­

Secondly, it is necessary to ascertain the outcomes in those countries with jurisdiction.­ This includes the final financial settlement, interim financial arrangements, the available injunctions to preserve the assets, the timetable and grounds for obtaining a divorce, any arrangements for children, the legal costs, the personal inconvenience of the proceedings being in that country, the recognition of any orders in other countries in which one spouse may be likely to live or work, opportunities for enforcement of any orders and a number of similar factors.

The outcome, timetable and procedure in the various countries with which an international family may have connections can be very different indeed.­ Some countries may seem to favour men and others seem to support women applicants and/or mothers.­ Some countries can be very slow from the start of the separation or the start of proceedings until the conclusion and outcome.­ Some countries are perceived as very generous to wives whereas some grant only short term alimony (spousal maintenance) or none at all.­ Some countries have exceptional powers to obtain full disclosure including finding out about assets offshore or held in the name of third parties and trusts, whereas some countries have very limited disclosure powers and permit easy evasions of full disclosure.­ Proceedings in some countries can be very expensive in costs although this must be balanced against better outcomes.­ Whilst many countries now encourage people to act in person in family court proceedings without a lawyer, these international aspects are an area in which specialist legal advice should always be urgently taken before you embark on any action.

 

Meet the team

Our specialists are knowledgeable, friendly and experts in their own individual fields.

 

 

GET IN TOUCH

Please send us a message with your query. Alternatively, request a call back, if you would like us to call you. We will be in touch within 24 hours.

 

 

OUR BOOK

When Cupid's Arrow Crosses National Boundaries"When Cupid's Arrow Crosses National Boundaries" by David Hodson OBE and Ann Thomas is the essential guide for international families.