When contemplating divorce or the dissolution of a civil partnership, it is vital to consider where an application should be issued.
For those separating couples who have resided in the same country throughout their lives, the decision will be straightforward. However, for those with international connections, the decision may be more complex. With the ease of travel, it is more common than ever that a separating couple will have resided and/or own assets in multiple countries. This may mean that, subject to the laws of each relevant country, there are numerous jurisdictions in which the couple can pursue divorce, dissolution and/or financial remedy proceedings.
What is Forum Shopping?
‘Forum Shopping’ is the term used to describe the ability to select the most appropriate and advantageous jurisdiction in which to commence divorce or finance proceedings. In England, the ability to do so was confirmed in the key case of Villiers v Villiers (2020).
Generally, the country in which a divorce or dissolution is achieved will not be of major significance to the separating couple. More important will be the jurisdiction in which financial remedy proceedings are commenced. Depending on the laws of each relevant country, the likely outcome of financial remedy proceedings can vary significantly. Respective laws will not only prescribe the type of financial orders that can be made, but also the likely quantum of any financial settlement. Moreover, not all countries will treat nuptial agreements equally; particular thought should be given to this if you have a nuptial agreement in place. Other relevant considerations include the court procedure in each jurisdiction (from legal costs to the extent of financial disclosure required) and the process of applying to the court in each country for enforcement of a financial order, should your former spouse fail to comply with an order down the line.
Which jurisdiction should you issue proceedings in?
When considering which country to issue divorce, dissolution and/or financial remedy proceedings in, we recommend following a three step process as a starting point, as follows:-
Step 1: Identify all relevant jurisdictions.
This will likely involve consideration of the countries in which you and your spouse are currently resident, the countries in which you and your spouse lived throughout your marriage, and consideration of any jurisdiction specified in a pre-nuptial or post-nuptial agreement as the one in which your divorce and finances should be dealt with.
Step 2: Seek legal advice in each relevant jurisdiction.
A family lawyer will be able to advise you of the appropriateness of the jurisdiction in which they practice, from jurisdictional requirements, the countries’ treatment of nuptial agreements, to the likely outcome of a financial settlement. This information will allow you to make an informed decision.
Step 3: Make an informed but swift decision.
Once you have determined the most appropriate jurisdiction to issue divorce and/or financial remedy proceedings in, we recommend that you act swiftly to ensure that proceedings are commenced in your chosen jurisdiction. If you and your spouse can agree on the jurisdiction, that will be ideal. Separating couples should be aware that disputes about jurisdiction (known as forum disputes) can be lengthy and complex.
For more advice on jurisdiction or international family law issues generally, please contact a member of our Family team.
