The court will consider which jurisdiction is the more appropriate, giving it discretion to decline jurisdiction even where English proceedings were the first instituted, if it considers that the parties have closer links with another place.
The jurisdiction for divorce proceedings is particularly important where there are related financial proceedings. The law surrounding finances after divorce varies hugely from jurisdiction to jurisdiction and has resulted in England becoming the “divorce capital" of the world, due to the courts traditionally being more generous to the economically weaker party than elsewhere.
Whereas at present that party – usually the wife – can be sure of seizing jurisdiction by instituting proceedings in England before their spouse can elsewhere in the EU, that will no longer be the case following the end of transition.
This may serve to reduce forum shopping and divorce tourism. At present, English jurisdiction can be seized where the:
- petitioner and respondent are both habitually resident in England and Wales;
- petitioner and respondent were last habitually resident in England and Wales and one of them continues to reside there;
- respondent is habitually resident in England and Wales;
- petitioner is habitually resident in England and Wales and has resided there for at least one year before the divorce petition is presented;
- petitioner is domiciled in England and Wales and has been habitually resident in England and Wales for at least the six months before the divorce petition is present; and
- the petitioner and respondent are both domiciled in England and Wales.
While these rules are set out in Brussels IIa, they will largely continue to apply in England and Wales as a result of domestic law following the transition period.
To illustrate the impact of this change, consider a situation where a French wife and Russian husband have properties in Paris, Moscow, Monaco and London.
They divide their time between the properties on an ad hoc basis, sometimes together and sometimes apart, while the children attend an international school in Switzerland.
The wife decides that she wishes to divorce and is advised that she is likely to receive the best settlement by instituting proceedings in London.
Prior to the end of the transition period, starting proceedings in London will be determinative. Provided that she can show that one of the jurisdictional criteria apply, if she issues before the husband can elsewhere, her proceedings will take place in England.
However, if she institutes proceedings after the end of the transition period, the husband may issue proceedings in another jurisdiction that is more favourable to him and apply to the English court for the proceedings in this jurisdiction to be stayed on the basis that this not the most appropriate forum.
