Forum Shopping in Divorce: Update after Mittal v Mittal Decision
International family law practitioners have welcomed the recent decision of the Court of Appeal in the case of Mittal v Mittal [2013] EWCA Civ 1255. This important judgment clarifies that in a situation where there are divorce proceedings in England and a non-EU country the English Court still has the discretionary jurisdiction to halt the proceedings in England on “Forum Non-Conveniens Grounds”. This means the decision as to where the divorce should proceed should be taken by reference to which country has the closest connection with the parties.
Why is this important?
This is important because in an age of increasing globalisation, many families have an international element. This may be because the spouses are of different nationalities or perhaps because they have relocated abroad. If the marriage breaks down it is often the case that more than one country will have the power (jurisdiction) to deal with their case. Therefore, it is extremely important in those situations for a spouse to take prompt advice from a specialist family lawyer in each relevant country as to what the likely financial outcome would be under the law of that country. It is essential that advice is sought before any proceedings are issued. Choosing the right country in which to file divorce proceedings can have a significant impact on the size of a divorce settlement. This is known as “forum shopping”.
The position within the EU
The implications of ensuring a spouse makes an informed decision about choice of jurisdiction is always important but is particularly crucial in a case involving two or more EU member states. This is because if two EU states have jurisdiction the Rules say that the first person to issue divorce proceedings will “seize” the jurisdiction they choose to the exclusion of the other. This “first past the post” system is final so if proceedings are then filed in a second EU jurisdiction the Court in the second country must stop its court proceedings even if the spouses have strong connections with that country. This European Regulation (known as “Brussels II) can lead to a jurisdiction race to ensure proceedings are issued in the preferred country. Taking specialist advice in each relevant country at the earliest possible stage is vital as time is often of the essence in these cases.
Forum Disputes between EU and non-EU countries
Where the forum dispute exists between an EU and non-EU country the position is different. Most countries decide on the basis of which country has the closest connection with the family, taking into account a variety of factors. Which spouse issued proceedings first may be relevant but is not usually the deciding factor (as is the case between EU states). Until the controversial decision of the European Court of Justice in Owusu v Jackson in 2005, it was accepted that the English Court had a discretion in accepting or declining jurisdiction based on whether England or the other non-EU country had the closest connection. The decision in Owusu (which was a civil case) cast doubt on this view of the law. In Owusu the ECJ held that the discretion to stay proceedings had ceased to exist in cases where England or other EU countries had jurisdiction to hear proceedings. There followed much discussion among family lawyers as to whether this applied to family law. The decision in Mittal now clarifies the law in this area. This must be a welcome development as it is surely reasonable that the jurisdiction which has the closest connection with the marriage or family should be the most appropriate place for their divorce.
The Family Team at Anthony Gold have extensive experience in advising clients whose cases have an international dimension. Camilla Fusco is a member of Resolution’s International Committee (and is qualified as a solicitor in Hong Kong and the UK). Kim Beatson is a Fellow of the International Academy of Matrimonial Laywers (IAML). Over the years we have established strong relationships with many foreign lawyers through whom we are able to co-ordinate international advice in terms of the most appropriate jurisdiction for their case.