For couples that have different nationalities or divide their time between countries, the huge difference in the outcome and treatment of financial aspects of divorce around Europe and more globally has given rise to ‘forum shopping’.
This is not just about ensuring that the divorce happens in the country where the financial outcome would be most favourable. It may also involve a determination of how quickly the case will be dealt with; what powers the court has to direct disclosure from a reluctant spouse; and the types of orders and sanctions available to the court.
In cases involving two or more EU Member States (except Denmark, which opted out of the relevant regulation), the first party to issue divorce proceedings secures jurisdiction whatever the strength of the connection.
The question of whether the English Court (indeed any EU Member State court) has power to stay (ie call a halt to) divorce proceedings if rival proceedings are already under way in a jurisdiction outside the EU has been fiercely debated. Until the controversial decision of the Court of Justice in Owusu v Jackson in 2005, it was accepted that the English Court had discretion in accepting or declining jurisdiction based on whether England or the other non-EU country had the closest connection.
The decision in Owusu (which was a non-family law case) cast doubt on this view. In Owusu the ECJ held that the discretion to stay proceedings had ceased to exist in cases where England or other EU countries had jurisdiction to hear proceedings. Would this apply to divorce law?
Moment of clarity
In the judgment of Mittal v Mittal handed down in October 2013, the English Court of Appeal has now added some clarity. Both parties in the case are Indian nationals who married in India in 2003, spent two years of their marriage living in England, separated in 2009 and returned to India. Mr Mittal issued divorce proceedings in India.Mrs Mittal issued a divorce petition in London. Could the English Court stay the proceedings?
The Court of Appeal decided that it is the jurisdiction which has the closest connection with the family which is the most appropriate place for their divorce. The English Court (and other like-minded courts of EU Member States) can stay proceedings on the basis that the competing (non-EU) court is the more appropriate forum.
Practitioners have welcomed the decision. We are likely to see a more effective use of foreign pre-nuptials or marriage contracts to block a divorce in, say, England, with an increased use of recitals to record how close the couple’s connections are with another country, possibly their home country. Arguably – in the right circumstances – the decision also encourages the use of cross-border mediation and a conciliatory approach.
Mittal is unlikely to be the final word on forum matters involving a non-EU country. Not only has Mrs Mittal signalled an intention to seek to appeal to the Supreme Court, the question remains whether the stay of divorce proceedings is an infringement of EU rules and, if so, it is for the Court of Justice of the European Union to determine. As they say, time will tell.
Michael Wells-Greco is a partner specialising in international family law in the private client team at Speechly Bircham (firstname.lastname@example.org)