International divorce dangers

International divorce used to be the preserve of the super-devious and/or super-rich. Nowadays, it is commonplace. Freedom of movement, the internet and the budget airlines have all changed the nature of cases crossing the family lawyer’s desk. 

The international element could be as simple as the family’s nationalities, employment, or a holiday home in the sun. Or it could be an off-shore web of complex corporate and trust arrangements. But any international connection could influence the choice of forum for the divorce and the eventual outcome. 

In many international cases, it is important to take advice swiftly in all relevant foreign jurisdictions in order to ascertain, and secure, the most advantageous forum. That is not necessarily England and Wales. There are a multitude of considerations, including the likely financial outcome, enforceability, speed, geography and cost. 

England and Wales has over the years become known as the divorce capital of the world. There is regular criticism in the tabloids of foreigners “forum shopping” in London. But careful “forum shopping” is of crucial importance. Foreign divorce laws can be very different and more prescriptive than our discretionary system. 

There is a raft of international conventions and EU Regulations to navigate. Within the EU, the parties’ nationalities (domicile in the UK) and habitual residences determine which countries’ courts can entertain a divorce. There is also a “first past the post” system ie, whichever signatory country receives the divorce proceedings first “wins” and any subsequent court has to decline jurisdiction. Losing that race could be devastating personally and financially. 

Consider the following scenario. Henri and Wilma are French and British respectively. They have two children. They live in France. The marriage is in trouble. Wilma is advised that although she could issue in France, financially her interests lie with the English court. She could issue proceedings in England without any prior notice to Henri so as not to alert him and prompt him to issue first in France. 

But Wilma’s future financial security is not her only concern. The children live in France. Under existing EU law, the French, not English, court would decide any disputes relating to the children. If she wants to move back to England with the children then Wilma first needs to understand what hurdles she would face in France and balance that with the competing financial concerns. 

Even internal UK cases cause headaches. For example, the law in Scotland is very different to that in England with limited scope for spousal maintenance in contrast to the potential for open-ended support south of the border. Warning bells therefore need to be ringing loudly when there is mention of any connection with any other jurisdiction. 

Brexit may complicate matters further. While the UK may adopt existing EU law, will this be respected by our EU counterparts? After 29 March 2019, even if Wilma issues in England before Henri issues in France, will the French court defer to the English court? Or will it allow the French divorce to progress regardless? Would orders made in England be recognised and enforced in France as at present? There is the danger of competing parallel proceedings with the associated costs. Watch this space! 

International cases require specialist advice. We are fortunate at Mills & Reeve to have five fellows of the International Academy of Family Lawyers. We are part of a global network of expert family lawyers and can access specialist advice swiftly to ensure steps are taken to protect our clients’ positions.