When a divorcing couple has international connections, the question will arise as to which country and court is most appropriate to deal with the pending divorce and financial negotiations. The same also applies in respect of dissolution of civil partnerships.
For EU citizens, this was an issue governed by EU law prior to Brexit. There are EU regulations (Brussells IIa) which confirm the grounds upon which an individual can bring a divorce in an EU member state; the parties would then “race” to issue their proceedings in the country with the divorce laws most beneficial to them, on the basis that the court seized first in time would be deemed to have jurisdiction. When divorcing spouses make tactical decisions regarding the country in which their proceedings are issued, this is known as “forum shopping”.
The Family Court of England and Wales has long been regarded to be the “divorce capital of the world”, on the basis that its laws are considered to be the most generous in Europe in terms of ensuring that the needs of a financially weaker party are met post-separation.
As recently as July 2020, the landmark case of Villiers v Villiers reinforced the “licence to forum shop”. The case involved a husband and wife who had spent virtually all of their married lives in Scotland and were subsequently divorced via the Scottish court. The wife made a maintenance application to the English court, whom the husband argued had no jurisdiction to deal with the issue. The Supreme Court however did allow the wife’s application. This decision sparked debate – with some family law practitioners praising the court’s discretion and bespoke approach, and others criticising the endorsement of “divorce tourism”.
The long-term implications of Brexit on the ability to forum shop are unclear. What we do know is that currently the position in England and Wales has reverted to the pre-EU regulations which exist in other non-EU countries. Cross-jurisdictional divorces may involve lengthy and costly disputes regarding jurisdiction, replicated proceedings and possibly irreconcilable disagreements. The jurisdictional basis to bring a divorce or dissolution of a civil partnership in England and Wales are currently wider than they were previously – and so for the time being, it is actually easier for international couples to issue proceedings in this country than it was prior to Brexit.
Certainly on the face of it, it would appear that the option to choose a court strategically is more available now than ever before – but there is also no guarantee that simply issuing proceedings first in time will secure the jurisdiction of the chosen court. Choosing a jurisdiction for your divorce can be a difficult decision due to the complicated nature of the law surrounding domicile and habitual residence. It is therefore important to take advice from a specialist family law solicitor who deals with international issues.
If you have a query regarding international family law or any other family law issue then please call 0151 600 3000 and ask to speak to a member of the family team.
