James Riby, an associate and family law expert at Charles Russell, discusses, discusses the ramifications of losing a “jurisdiction race” when divorcing.

James Riby, an associate and family law expert at  Charles Russell, discusses the ramifications of losing a “jurisdiction race” when divorcing.

Divorce and family lawyers are often heard to talk of a post-Christmas and New Year rush of new clients. Whether this is just part of return-to-work blues on the part of the lawyers or a real trend has never been clear. At present the ONS and HM Courts and Tribunals Service (responsible for running the family courts) do not appear to publish data broken down according to the month in which divorce petitions were issued at Court. But some statistical data can be found which apparently supports the theory, although perhaps of questionable reliability. For example a 2010 survey of Facebook users’ “status updates” showed huge peaks in the number of users declaring themselves just out of a relationship and single in the three to two weeks before Christmas. The week around Christmas Day itself showed a steep drop, with some commentators wondering if the explanation was that Christmas was “too cruel”. Interestingly, a similar peak was found in the weeks after Valentine’s Day.

Whether the trend exists or not, we can all imagine the human reasons why many people may wish to wait until after the festive season to instruct a lawyer and begin the formal legal steps to separate. For many clients the time they instruct a lawyer is also the time they begin to make serious plans to move out of, or separate in some other way, the family home. Perhaps they do think that pre-Christmas would be “too cruel”, and when children are involved and home from school these periods are clearly very sensitive. Alternatively, there may be a feeling of “New Year, new start” for others, with speaking to a lawyer being just one of the items on the list of New Year’s resolutions.

Problematically, in one key respect the law itself does not accommodate such season-picking and waiting for the right moment. This is for families and couples who may be described as “international” in the sense that, according to the complex jurisdiction rules, they may have the possibility of getting their case dealt with by the Courts of more than one country. This could be because one or the other of them lives or has lived in another country, or spends some time there frequently (say for work), or because they are a national of another country or domiciled there. 

A jurisidiction race

The reason this matters so much is that the financial outcome for each party can vary hugely depending on which country and its courts deal with their case, and once proceedings have been issued in one country there is often no or little scope to issue them in another. This adds up to a “jurisdiction race” which favours the party who obtains legal advice early on about the options available to them and their likely outcomes, and acts quickly on that advice. It often prejudices the weaker financial party who, say, holds few if any assets in his/her name and is less likely to seek good advice quickly; indeed, they may not have the resources to do so. There may also be other reasons why one or both parties may prefer to have their case dealt with by one country as opposed to another.

Divorce is probably the best example. Divorce jurisdiction law throughout the UK is based on EU legislation which gives jurisdiction to the Courts of the Member State(s) in which the parties’ circumstances meet a number of different habitual residence, residence, nationality or domicile tests. The tests are complicated and professional advice needs to be obtained on them. Then, once divorce proceedings have been issued in one Member State, EU law blocks any subsequent application being launched and dealt with in the Courts of another Member State. It is a “first past the post” system.  There may be no such uniform and strict rules in cases which have connections with other, non-EU countries, but in these too being first past the post can be enormously important in the courts’ decisions as to whether a case should be dealt with or left to the courts of the other country concerned.

Country differences

At this point the differing financial outcomes appear, as different countries each adopt their own very different approaches.  For example a couple whose divorce is dealt with in France will find that the weaker financial party’s right to maintenance is much more limited and less generously applied than it would have been had the English court dealt with their case.  The approach to division of capital in France and many other continental jurisdictions is also different, often based on dividing capital according to pre-determined property law “regimes”, one usually called “separation of property” and the other “community of property”. This often favours the party who currently has legal title to the majority of the assets. In England by contrast, the court seeks to ensure that capital is distributed according to a “fair” and tailor-made approach which takes account of the circumstances of each case. This protects (some would say favours) the weaker financial party.

There are other differences too which parties should bear in mind when deciding whether to take the initiative to secure the jurisdiction which may be preferable for them. Some jurisdictions are much slower than others, and in some countries divorce is only possible after a legally-imposed waiting period (in Italy for example, the parties must wait 3 years before they will be divorced). Privacy and confidentiality is another issue – the English Court’s disclosure and investigative powers, which tend to be more extensive than those of other jurisdictions, may suit one party in some aspects but can be uncomfortable for both when bearing in mind recent and ongoing legislative moves in the UK to open up the family courts to the media.

Jurisdiction considerations for cohabitees

It should be borne in mind that divorce is not the only family law procedure in which these issues arise. The same first past the post jurisdiction considerations apply to cases involving an unmarried parent trying to obtain child maintenance and capital provision from the other parent, and procedural differences between different countries, such as those relating to disclosure and privacy, can apply to all types of procedure, divorce or otherwise.

If this legislation-imposed jurisdiction race sounds unconducive to a conciliatory festive period and in need, many say, of reform, it should be borne in mind that it does not mean that parties are encouraged to race into all-out “no holds barred” litigation. The opportunity to negotiate and try alternative means of dispute resolution, such as mediation, always exists and will always be given early consideration by a good legal team. There may also be some scope for delaying service of the procedural documents on the other party, although this is usually risky and should be done with careful professional advice. And if the festive period succeeds in saving the relationship, there is usually nothing to stop an application to Court being withdrawn without consequence – this is possible in England for example (although this too may be risky). The point is to ensure that these points are considered after having anchored the case in the most appropriate jurisdiction for the client.