There is, in my experience, almost no such thing as a ‘one country divorce’. Whether a Portuguese holiday home, a three-nationality husband or a wife resident in one country and domiciled in another – there is ordinarily some international consideration.
Identifying the possible jurisdictions
The first consideration for any spouse considering divorce must be deciding the jurisdiction in which to commence proceedings. Outcomes in family law vary wildly depending the jurisdiction determining the claim. Seeking spousal maintenance in England? A possible outcome. Seeking it in France? Bonne chance!
So to how to mitigate the risks of issuing in an unfavourable jurisdiction? To borrow a phrase – ‘Advice. Advice. Advice’. And early. Before initiating divorce proceedings in England, firstly identify which other countries could have jurisdiction. To divorce in England you must satisfy one of seven possible jurisdictional criteria. For example, criteria four is that the applicant is habitually resident in England and Wales and has resided there for at least one year immediately before petitioning. These seven options largely replicate the EU jurisdictional criteria under which England, pre-Brexit, was bound.
It is therefore highly foreseeable, and indeed common, for a prospective applicant to have multiple jurisdictional options – a husband and wife may both be habitually resident in England (satisfying the first of the seven criteria here), but also both be German nationals (and therefore satisfy the jurisdictional criteria in Germany, under the EU’s Brussels II Revised rules).
Which jurisdiction to issue in?
Having identified the possible jurisdictions, compare each country’s approach to financial claims arising on divorce. England is, for instance, often regarded as a jurisdiction favourable to the financially weaker spouse. If you are the financially stronger spouse, England might therefore be a jurisdiction to be avoided, and using the example above, German advice should be sought on whether the German courts would likely produce a more favourable outcome. Having compared the likely outcomes in the two (or more) alternative jurisdictions, a petition should be lodged in the country most likely to produce the more favourable outcome.
Proceedings have been issued - sadly nor the end of the story
Prior to Brexit, if the criteria were satisfied to petition for divorce in both England and another EU country, e.g. a husband petitioned in England and a wife petitioned in Germany, the courts of the second in time petition had to stay (i.e. pause) their proceedings until/unless it was established that the country first seized lacked jurisdiction. These rules were governed by EU legislation known as Brussels II Revised and the principle is known as lis pendens. The simplicity of this ‘first past the post’ approach was one of the significant benefits that English litigants enjoyed while we were EU members.
However Post-Brexit, in the scenario above, lis pendens no longer applies and there is no obligation on either the English Courts or the EU member courts to stay proceedings. This has always been the position where there were rival petitions in England and non-EU countries, but now England is no longer an EU member it applies to all rival jurisdictions (subject to other, less effective, treaties/conventions). Instead, whether the English Court will exercise its jurisdiction depends on whether it determines it is the “Forum conveniens” (the convenient forum) compared to the alternative jurisdiction. The Court’s considerations are unlimited, but often it will include where the parties are resident/domiciled, where the children live, where the assets are located or the income earned. The Court will also consider whether proceedings were issued in England and Wales prior to those in the rival jurisdiction – so while the first to petition is no longer determinative (as it was between England and EU countries pre-Brexit), it can still be a relevant factor in the forum conveniens considerations.
This creates the potentially huge cost and complexity of contested forum conveniens proceedings, which would have to be decided as a preliminary issue, and the possibility of both England and the alternative jurisdiction claiming to be the ‘convenient forum’ and producing contrary outcomes. The only way to mitigate these risks is to, again, take early advice to maximise the prospects of demonstrating that the forum you seek to issue in is the convenient forum.
The Lugano Convention – a potential solution
The 2007 Lugano Convention exists between the EU countries, Norway, Switzerland and Iceland. On leaving the EU, the UK automatically ceased to be a signatory. On April 2020 the UK applied to re-join however becoming a member requires the approval of all existing members. Norway, Switzerland and Iceland have consented – the EU is currently holding out.
The Lugano Convention covers three core areas – jurisdiction, recognition and enforcement. It applies in respect of claims for ‘maintenance’.
As to jurisdiction, where two signatory countries are the subject of rival proceedings in respect of maintenance (and they are the “same cause of action”), the Lugano Convention contains similar rules as to the Brussels II revised rules, namely that the maintenance application second in time must be stayed until jurisdiction is established in the country of the first in time application. Even if the applications are only ‘related actions’ for maintenance, the court hearing the application made second in time should, in their discretion, consider staying proceedings.
The Lugano Convention also allows Judgments relating to maintenance in signatory countries to recognised and enforced in each other’s courts. Helpfully, maintenance is not limited to spousal or child maintenance, but can include the element of capital provision/lump sums that is referable to the recipient’s income or capital needs. Therefore, if the UK is allowed to re-join, it will allow all English financial orders, save for the element of sharing based awards above the recipient’s needs, to be enforceable in the Courts of the other signatory countries.
Until the EU’s 27 members allow the UK to accede to Lugano, issues as to jurisdiction and enforcement are dealt with by a combination of English law and other, less effective, treaties, such as the 2007 Hague Maintenance Convention. Therefore until England does accede to Lugano, the recommendation is be cautious and do not take any steps until legal advice has been taken on all the options.