“Forum Shopping” is the term used to describe the period of time where people consider the countries they could commence legal proceedings and deciding which favours them. In the context of divorce/dissolution, with people having connections to multiple countries there may be a range of options where proceedings can start. If there are forum options there may be a race for separated spouses/civil partners to consider these and then commence proceedings.
In an increasingly mobile society, international work/investments and international marriages , divorces/dissolutions have an ever increasing international aspect to them. By way of example, if a person was born with French parents but in Spain where they lived and worked up to the date of marriage before moving to England and then spends long periods of time working in Germany, forum options arise.
When considering if people have choices where to commence divorce/dissolution proceedings a number of factors need to be considered and the most important being:
a. Current country where the couple are ordinarily settled (habitual residence).
b. The last country where the couple were settled.
c. Where a person is said to have a permanent home (i.e. being domiciled) which can be determined by:
i. Nationality at birth.
ii. The choice of a person to move to a new country and with the intention to permanently remain there.
iii. The dependency on a parent (applicable only to children under the age of 16).
Where there are forum options available to people about to embark on divorce/dissolution proceedings it is imperative that there is a swift assessment of the range of financial outcomes in the various potential countries so that proceedings can start in the one that it the most advantageous. Courts in certain countries may be more favourable to a person’s case than others but this will vary from case to case. If there are forum options within the European Union (EU) and a person starts proceedings in a particular member state that suits them, the courts there will retain exclusive jurisdiction to determine matters. Once proceedings have started in an EU state the recipient of divorce papers may have no choice but to accept its jurisdiction (the law in this area may change subject to Brexit).
Quickly and carefully shopping for the forums for divorce is a critical step in commencing divorce/dissolution proceedings if a person is to secure the most favourable jurisdiction and also avoid costly legal arguments in respect of forums of convenience.
To find out more about international divorce/dissolution and forum shopping contact Kiran.