A question of jurisdiction by John Bolch

Divorce|January 29th 2014

The issue of which country’s courts have jurisdiction to deal with divorce has cropped up several times over the last few days.

With more ‘international’ couples and more and more movement between countries taking place, arguments over which country’s courts should handle divorce proceedings have also increased in frequency. This is especially an issue where the parties go ‘forum shopping’, believing that they will get a more favourable divorce settlement in one particular jurisdiction.

Jurisdiction is a complex issue and preliminary arguments over it can eat up enormous resources in legal fees, even before the divorce itself and issues relating to children and property are dealt with. It is therefore essential that jurisdictional disputes are avoided at all costs.

A recent case, however, demonstrates that this does not always happen.

Divall v Divall concerned a husband who issued a divorce petition in England. The wife claimed that the English court did not have jurisdiction as she was not domiciled here, and she issued divorce proceedings of her own in the Netherlands, where she lived.

As the husband had ‘got in first’, the Dutch court put the wife’s petition on hold, while the English court decided whether it had jurisdiction. Some eight months after the husband had filed his petition the High Court decided that it did not have jurisdiction. Accordingly, the divorce will now go ahead in the Netherlands.

The case was heard by Mr Justice Moor. It is notable that at the end of his judgment he stated that in the light of the facts of the case he was “entirely unclear as to why this issue was litigated, at, no doubt, considerable expense”. In other words, more precious resources wasted.

Attempts were made to deal with the issue of jurisdiction disputes in Europe, with the passing of the ‘Rome III Regulation’, which came into force on the 21st of June 2012. This allows international couples to select which country’s laws should apply to their divorce and legal separation.

It was reported yesterday that Greece has become the sixteenth country to sign up to the Regulation. The UK, however, has not signed.

The idea of the Regulation is to give couples certainty and to avoid expensive ‘forum shopping’, by making the court of the country where they issue their divorce use the law of the country of their choosing.

However, there are at least two problems with the Regulation. Firstly, how many couples will agree matters in advance? Secondly, it seems odd to me for the court in one country to apply the law of another country – surely, they are going to need expert evidence as to the other country’s law? If so, then this is only going to increase the costs.

What seems clear is that, unfortunately, jurisdictional disputes are going to be with us for the foreseeable future.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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  1. Luke says:

    “However, there are at least two problems with the Regulation. Firstly, how many couples will agree matters in advance? ”

    Stick it in the prenuptial agreement – make prenuptial agreements compulsory. Game Over.

    That would be too easy though, wouldn’t it ? 🙂

  2. AW says:

    I am one of those women whose husband ‘got in first’ in France. However the divorce was pronounced under French Law but the settlement (splitting of assets) is to be done under English law. Both parties are English and married in England. My Ex-husband is working abroad, all our marital monies are off-shore under his control and the property is mainly in France. EU regulations don’t seem to be able to help solve this problem for me, and I am desperate to find some is this a VERY unusual case? Is there precedent to help?

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