Last weekend was the famous Grand National weekend, one of the most important weekends for horse racing in the calendar year. For many, prior to Brexit, the most important race in the family law world was the ‘divorce jurisdiction race’. This is where separated couples with connections to other countries within the European Union raced to make their application for divorce in the country of their preference. It is not unusual for multi-national families to disagree as to which country’s laws they wish to deal with their divorce and financial separation. Following the UK’s departure from the European Union, this ‘divorce jurisdiction race’ is no longer the determinative factor, the court must now look at which country is the most appropriate to deal with matters.
Position before Brexit
For divorce applications made on or before 31 December 2020, where it was possible for a husband or wife to make an application for divorce in another European state, there was a rule that said the first court to receive the application shall deal with the divorce, provided they are able to. Where an application for divorce was also made in a second EU country, the court who received their application second were required to wait for the first court to decide if they could deal with it or not. Only if the first court was unable to, could the second country’s court proceed. There was no ability to challenge this.
Position after Brexit
After England left the EU, all applications made after 1 January 2021 shall now be dealt with in the same way that has always applied where there are competing jurisdictions outside of the EU. Where there is another country that is capable of dealing with the divorce and an application is made in two different countries (whether in the EU or further abroad), the question now is which is the most appropriate forum to deal with or the proper place for the dispute to be determined. This principle is often referred to as “forum non conveniens”.
When an application is made in England or Wales for a divorce, and where an application has also been made for divorce in another country, the court will need to consider which country is the most appropriate one to deal with matters. The court has the ability to pause progressing matters whilst it considers this. When considering this, the court must carry out a two-stage test and decide:
- Which is the most natural place for the issues to be dealt with? This will be the country to which the family has the most real and substantial connections. The Court will consider many factors when deciding this including where the family live, where any assets are, where any business is carried out, what the connections are to the different countries and where the closest connection is.
- If it is decided that the other country is the most appropriate place, the Court then must consider whether there is reason that it should take place in England and Wales regardless. The fact that one party might obtain a better financial outcome in one country over the other country is not a decisive reason.
Each country has its own set of requirements that must be met in order to be able to make an application for divorce in that country. It is sometimes beneficial to consider which countries you are able to make an application in and what the laws are of those countries before deciding where to make an application. If both parties make applications for divorce in two different countries, it can become a difficult decision as to where matters should proceed. The court will be required to consider a lot of evidence and there will be some very technical legal arguments to be made.
How Moore Barlow can help
If you find yourself unsure about divorce jurisdiction and which country to make your application or if you have made an application in England or Wales but your ex-spouse has applied in another country, our Family and Divorce lawyers can help you establish the best way to proceed. At Moore Barlow we are proud to have experienced, international lawyers who are able to help, get in touch to find out more.
