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Shopping for divorce in Europe

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Some savvy clients who are able to, shop around to find out which country is best to divorce in. We call this forum-shopping and it is a perfectly legitimate thing to do. In fact, some academics argue that the applicable European regulations encourage it.

A client has the ability to shop around, if they are habitually resident in more than one EU country, or habitually resident in a different EU country to which they live in, or the parties to the marriage have different habitual residences in EU countries.

When clients are out shopping for divorce they will usually have the following questions: “Which jurisdiction (country) will…….

give me the most generous divorce settlement?
give my spouse the least generous divorce settlement?
cause my spouse the most practical problems?
cause my spouse the most expense?
result in a quick or slow divorce?

The logic behind the first two questions is obvious. In respect of the latter questions - some clients do want to cause their spouse expense and logistical difficulties in the hope that it will give them some advantage in the divorce proceedings. Furthermore, some clients want a quick or a slow divorce for a wide variety of reasons.

Of course, a solitary divorce lawyer can not provide definitive answers to these questions and is only usually qualified to answer questions about the jurisdiction in which they work.

At Clarion, we have relationships with foreign matrimonial lawyers, and we can work with those lawyers to explain whether England or another jurisdiction would most serve your purpose.

In the event that you decide that you wish to divorce in a country in the European Union, the rules as to how to seise a jurisdiction are the same. The rules are contained in the European Council Regulation (EC) No 2201/2003 known as Brussels II bis.

This Regulation provides in Article 19, that:

Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the first court seised is established.

This means, that if you want to secure a particular jurisdiction for your divorce, your best chance of doing this is to be the party that files the divorce petition first and in your country of choice.

Say you decide that France is the jurisdiction most appropriate for you (and many people choose France over England because the French courts cannot share pensions), if you file your petition in France, and later your spouse files a petition in England, the English courts cannot action the divorce and have to wait until the French courts decide whether they are going to hear the case or not.

Furthermore, pursuant to Article 19(3) if, in this example, the French courts decide that they will hear the case, the English court shall decline jurisdiction in favour of that court.

It pays therefore to investigate which jurisdiction is best for you, and to ensure that your court of choice is the court first seised by lodging your divorce petition there first in time. The best way to ensure that this happens is not to give your spouse any notice of your plan. If you do, your spouse may act quickly and issue a petition, first in time, in his/her jurisdiction of choice which may not be beneficial to you.

During the negotiations of Brussels II bis the UK had serious reservations. The UK was concerned that the straightforward rule of Article 19 was a poor substitute for the English common law practice of deciding whether a court should keep a case based on fairness and consideration of the particular factors of a given case. The UK was also concerned that this rule would minimise the possibility of reconciliation between the parties and promote a race to the court, to ensure that the party first to issue bags the jurisdiction of his/her choice.

The objective of Brussels II bis is not to cause stealth between separating partners, it is to prevent parallel divorce proceedings – two sets of divorce proceedings running in two separate countries. As a policy objective, this was clearly more important than the fall out of divorcing spouses, issuing divorce proceedings behind their spouses’ back to secure jurisdiction.

Furthermore, the mechanism of deferring to a foreign court – which is something historically the English courts have been loathed to do – fosters the development of mutual trust between the Member States of the EU which is an underlying principle of importance in the EU.

So, what about jurisdiction agreements – where during or before the marriage parties agree (usually in a pre or post-nuptial agreement) in which jurisdiction they will divorce in? Should such agreements, hinder the ability of a party to shop for divorce?

The recent case of Jefferson v O’Connor emphasises the strict interpretation the English courts are prepared to give to Article 19 of Brussels II bis. The court held that jurisdiction agreements between the parties as to whether they are to divorce does not fetter the effect of Article 19. The court took a literal approach to the interpretation of Brussels II bis finding that as the Regulation allows in Article 12 an extension of the court’s jurisdiction in line with a jurisdiction agreement in relation to matters of parental responsibility – the fact that there is no accommodation for jurisdiction agreements in Article 19 in respect of divorce, thus means that Article 19 is not fettered by a jurisdiction agreement.

This clarification is extremely useful as many nuptial agreements contain jurisdiction agreements, which are likely not to hold any weight. It is common practice that such jurisdiction agreements are included in nuptial agreements.

The court’s guidance is that if parties want to agree jurisdiction they can do so, by their actions – by agreeing in which jurisdiction to issue. This guidance is of very little practical help to divorcing parties where perhaps they agreed in which jurisdiction they were to divorce during their relationship, but one of them withdraws from this agreement at the time their relationship breaks down.

Therefore, as general advice on consideration of Brussels II bis and the case of Jefferson and O’Connor is:

1. Forum shopping is a legitimate process for a party contemplating divorce. If you have the ability to issue divorce proceedings in another jurisdiction find out which jurisdiction is best for you, by taking legal advice;

2. When you have ascertained this – although this is not very conciliatory – it is usually sensible for you not to give notice to your spouse and instead issue the divorce proceedings in your jurisdiction of choice as quickly as you can. If you give your spouse notice of your intentions the risk is that he/she will issue proceedings before you, in a less favourable jurisdiction; and

3. A jurisdiction agreement should give you very little security that the chosen jurisdiction, will be the jurisdiction your divorce proceeds in. Brussels II bis will give no consideration to such agreements.

If you have any queries or questions please contact me on 0113 336 3323 or justine.osmotherley@clarionsolicitors.com

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