Many families have an ‘international element’. There are various possible reasons for this. For example, the family may have moved from one country to another during the marriage, or one or both of the parties may have originated from another country.

In such cases it may be possible to issue any divorce proceedings in more than one country.

And obviously the law of the country in which the proceedings take place will determine how any financial settlement is decided, with the result that a party may receive a more favourable settlement in one country than another.

The possibility, real or perceived, that a party may obtain a more favourable outcome can lead to a highly-contested and expensive jurisdictional dispute between the parties, before the divorce proceedings even get under way.

‘Divorce capital of the world’

The question, then, is: which party may obtain a more favourable outcome if the proceedings take place in England and Wales?

The answer, it is widely believed, is that wives receive more generous settlements in this country.

The reason for this is that the system used in this country to determine divorce settlements is quite different from that used in many other countries. For example, rather than have fixed rules to determine the settlement, as is the case in many other countries, in this country judges have a discretion as to what they believe to be a fair settlement, which can mean that the financially weaker party, often the wife, can be favoured.

And thus many wives of wealthy husbands have sought to have their divorce proceedings take place in this country, with the result that London has earned the title of the ‘divorce capital of the world’.

How are jurisdictional disputes decided?

Until this country left the European Union on 31 December 2020, the answer would depend upon whether the other country was an EU member state, as different rules would apply if it was.

In such a case the dispute would essentially be decided by a ‘first in time’ rule – i.e. the divorce would take place in the country where divorce proceedings were first issued.

As may be imagined, this often led to an unedifying race between the parties to issue divorce proceedings first.

But since the United Kingdom left the EU the ‘first in time’ rule is no longer determinative, although the courts in England and Wales can exercise a discretion to stay proceedings if there are proceedings taking place in another jurisdiction.

The rules that apply now to both EU and non-EU countries can be somewhat complex, so will not be set out in detail here. Suffice to say that the deciding factor is the connection of the parties to each country, so that the proceedings should take place in the country with the closest connection.

Factors to establish the closest connection include: nationality, residence, where assets are held, where children are attending school, language and cultural background.

Whilst not within the EU jurisdiction, the recent case of SA v FA [2022] EWFC 115 provides an interesting application of the “forum non conveniens” principle. In this case, the South African wife issued divorce proceedings in England in September 2021, with the assertion that both parties were domiciled in England. The English husband contested jurisdiction, arguing that both parties had been habitually resident in the UAE since 2008, and issued proceedings in the UAE in October 2021 in the non-Muslim family court (which had been recently established there). In the first part of his judgement, HHJ Hess confirmed that the English court had jurisdiction to hear the proceedings as both parties had retained domicile in England when the wife’s petition was issued, as there had been a mutual expectation for the parties to return to England, when the husband stopped working for a firm based in the UAE. However, as a second point, HHJ Hess decided that the UAE would be the more appropriate forum to hear the proceedings and therefore proceedings were stayed in England (pursuant to the Domicile and Matrimonial Proceedings Act 1973, section 5(6)). In this decision, he considered the secular status and powers of the new Family Court in Dubai (which were just as wide ranging as those of the English Court), the couple’s habitual residence in UAE over the last 14 years, their commitment to educating the children there until 2028 and the husband’s undertaking to pay all the current outgoings of the family in the UAE.

A word of warning

One of the leading cases on jurisdiction is Golubovich v Golubovich, a decision of the Court of Appeal in 2010.

The case involved a couple who were both Russian, but who lived in London. The husband was from an extraordinarily wealthy Russian family, whilst the wife was financially insecure. When the marriage broke down the husband sought to have the divorce dealt with in the Russian courts, and the wife sought to have it dealt with in this country.

In the event the husband succeeded, despite the fact that the wife was the first to issue a divorce petition, in London.

But this case is not referred to for its result, but rather for the comments of Lord Justice Thorpe, who gave the leading judgment. He said, “…the battle to establish the priority of one of the two jurisdictions seized often proves elaborate and expensive … As a generalisation it is only the rich who fight to establish priority. There is no incentive to fight but financial advantage.”

He went on to point out that such a dispute was not only expensive, but also likely to exacerbate the bitterness between the parties.

Needless to say, expert legal advice should be sought regarding the law of both countries, before embarking upon a jurisdictional dispute.