Laws of jurisdiction are needed to prevent people from “forum shopping” which means choosing the country which will produce the best financial outcome following divorce proceedings.
These days there is often a choice of jurisdiction because we frequently marry EU citizens. This potentially creates two possible EU divorce jurisdictions. We may also relocate for employment or other reasons which could give the opportunity of divorcing in more than one country.
The practice of issuing a divorce petition but not serving it and keeping it secret is not unusual. Why does it matter?
The reason lies with the Brussels ii Regulation. In short, there may be good strategic and financial reasons for issuing a divorce petition in a chosen EU country to prevent the other spouse from filing in another country. The first court “wins” jurisdiction when the petition is issued. However, there have been many cases which have examined whether jurisdiction could be lost if the petitioning party did not take the steps required of him/her to serve it on the other party. The domestic law of the country issuing the petition applies.
This is examined in the 2016 case of Thum where a wife issued her petition in London in October 2015 but took no steps to serve it until January 2016. In fact, perfect service on the husband was not achieved until the end of February 2016. The husband contended that the wife’s delay had been deliberate and tactical and that the petition should be stayed or dismissed.
The litigation came before Mr Justice Mostyn and ultimately, he concluded that the wife had acted within a reasonable timescale in serving the petition. In fact, there is no time limit in English law and the wife’s petition was not considered an abuse of process.
What about Brexit?
As with all things Brexit, much depends on whether we leave with a deal. So far, a UK/EU deal has involved transition arrangements so that the current law continues for a period and we all have time to adjust!
If there is no deal, the position is much more uncertain. The EU/UK will have failed to sign a Withdrawal Agreement and an agreement governing the future relationship between the two parties. EU law will, therefore, no longer apply. The Brussels ii Regulation has hitherto meant that EU courts automatically respect the primacy of other EU states on divorce and other family issues. That will end and cross-border recognition will be governed by national law.
Unless the States involved are parties to the Hague Convention on divorce, this will result in conflicts of jurisdiction and proceedings in different countries. It is hoped that there will still be a possibility of reciprocal arrangements (whether there is a deal or not) but the events of recent months indicate that the energy and initiative for further compromise and negotiations are limited.
There can be no guarantee that cases underway in other EU member states on exit day will continue to apply EU regulations where UK courts or UK nationals are involved.
Against that background the need for specialist professional advice, particularly where international divorces are concerned, is even more crucial and it may be necessary to take legal advice in other EU countries too.