Divorcing spouses (often expatriates) keen to get the upper hand on their ex-partner are increasingly exploring ‘forum shopping’, the practice of filing for divorce in the jurisdiction which is most likely to serve their interests, particularly financially. Each spouse can choose a preferred jurisdiction and commence proceedings and a decision must then be taken by the court on which international jurisdiction is most appropriate.
EU – the race to divorce
If the jurisdictions in question are within the European Union, forum shopping essentially becomes a competition of who can file for divorce first in their chosen jurisdictions. Between UK courts and the family law courts of EU member states there are other criteria which come into play though, with the court with the closest ties with the families likely to be chosen.
In many ways, this is an unfortunate practice which often boils down to gambles about which jurisdiction will maximise a spouse’s share in the financial settlement. Sadly, this undermines the good work that UK courts have done to promote less acrimonious forms of dispute resolution of late for divorcing couples. Before considering forum shopping, spouses should pit the possible financial advantages against the impact that taking such action can have on other areas of divorce proceedings and most important the detrimental impact that it might have on children and other family members. Furthermore, forum disputes can be very expensive and subject to lengthy delays.
Forum shopping – factors to consider
Those thinking about filing for divorce in an overseas jurisdiction really need to take the following issues into consideration:
• Whether the spouse would still be able to apply for a UK financial order despite the overseas ruling
• Whether the court is willing to recognise the original marriage. Does it have the power to deal with eh case anyway?
• Whether or not filing the case overseas would affect your domicile, nationality or immigration status
• Exactly what the courts will take into account when looking at the case
• Whether you understand the language and can afford the time and expense of travel back and forth
• Whether assets can be frozen pending trial to prevent your spouse moving assets around the world out of sight
• Whether the country in which the assets are held would recognise the judgement of the chosen court
• Whether the court has strong enough powers to compel the other side to disclose financial information. Spain for example as weak powers in this regard
• Will the court’s ruling prevent you moving to or remarrying in another country you may wish to live in?
• Whether the court may use its powers to make rulings on other divorce disputes such as children matters which you may not wish to be included. The cost of losing out in this area may outweigh the advantages of receiving a larger financial slice.
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