International Families and Divorce: Choice of Jurisdiction
With the increasing number of international families, we are often asked to advise whether proceedings for divorce (including financial relief) should be started here or in another jurisdiction to which the family is linked. The same question is increasingly asked about proceedings concerning children. The other jurisdiction may be their ‘home’ country where, for example, the family is temporarily habitually resident in England or another country in which they spend a lot of time.
Which Jurisdiction for Divorce and related Financial Claims?
The question of jurisdiction is important. Outcomes in different countries can be significantly different. England is generally known as a jurisdiction that favours the financially weaker party and so many such people try to ensure that proceedings take place here.
To start a divorce in England one of the parties to the marriage must be domiciled here or have been habitually resident here (generally for 12 months) immediately before start of the proceedings. Jurisdiction in other countries may vary but this usually requires some period of habitual residence in that country or sometimes nationality or domicile.
Of course, if it is better financially for one party to divorce in England it likely to be better for the other to divorce somewhere else. The consequence of this can be competing proceedings and a race to secure a divorce first. One has to ask whether the cost (emotionally and financially) is worth it.
When the UK was part of the EU, jurisdiction races were less common not least because, at least between all the EU states, there was a requirement for a stay on proceedings in countries that were not first in time. Since leaving the EU, forum disputes (ie. which country has jurisdiction) are increasing.
Financial Relief after an Overseas Divorce
One of the surprising facets of English law is that statue allows claims for financial relief following an overseas divorce provided that the applicant for relief is either domiciled here or has been habitually resident here for 12 months. There is also a limited jurisdiction based on having a matrimonial home in England, but such claims are limited to that home only.
The claim for financial relief following an overseas divorce is not automatic and an application for permission to bring a claim in England is needed first. This is not a high hurdle however, provided the applicant can demonstrate a strong connection to England. In theory the jurisdiction under the Act is limited to needs, which is sufficient to meet the applicant’s needs and those of the children. However, needs are assessed based on the standard of living enjoyed during the marriage and may extend to luxurious housing in London and abroad plus a fund to meet the applicant’s income needs for the rest of his or her life.
Therefore, a race to finalise divorce in another country may be (arguably) futile if financial relief in England is then possible.
Which Jurisdiction for Proceedings Concerning Children?
Choice of jurisdiction for children can have even more profound consequences. For the English court to deal with issues concerning children the children must be habitually resident here. There is no minimum period of habitual residence and so it can be acquired quickly. Once a child is habitually resident in England no one may remove the child from England & Wales without the consent of the other parent or the permission of the court, otherwise an offence of child abduction is committed.
Because jurisdiction in relation to children can be established quite quickly it is not uncommon for there to be jurisdiction in another country where the children may have retained some form of habitual residence. The consequence may again be competing proceedings and a race to establish jurisdiction in the parent’s favoured court.
The Hague Convention 1996 is intended to prevent competing claims concerning children in countries that are signatories. At the time of writing there are 34 signatory states which includes the EU, the US and Australia. Where there are competing proceedings, the convention provides for the country that is second in time to stay (put on hold) proceedings. However, in a case in which FLiP was involved the English High Court determined that a stay was only available once habitual residence is determined in the country that was first in time. This led in the particular case to contested proceedings in 2 jurisdictions and a race to a final decision.
Different countries deal with children proceedings in different ways and some have an obvious mother or father bias. Getting to a conclusion in the desired country can therefore make a significant difference to outcome. Some are much faster than others and, between the Hague Convention 1996 countries, once a final order is made in one, it should be recognised and enforced in the other. This arguably encourages competing proceedings and a race to court.
Similar to divorce, the EU has clear rules to prevent competing proceedings between member states and a requirement for stay on proceedings in countries that were not first in time. Since leaving the EU, forum disputes in relation to children are increasing.
Arguably, the answer is what EU law was intended to achieve – namely a drive towards harmonisation of laws (removing the incentive to a jurisdiction race) and clear rules about which court takes precedence. There are, of course, other international conventions that go some way towards this (such as the Hague Conventions) but, as things stand many people will continue to perceive benefits in the race to court and the numbers will continue to increase. This cannot be positive for families caught up in the competing proceedings.
David Allison is a director at Family Law in Partnership. David specialises in financial claims on divorce, especially divorce cases with an international element. He has extensive experience in the legal issues relating to cohabitants, same sex couples, and civil partners.