An article for The Brief last week argued strongly that separating spouses should not “race” to have divorces heard in their preferred country.
In my view, that advice is wrong.
It is essential that divorcing couples with international links do race to get divorced in the country that will give them the most favourable outcome. Within the EU, the race is absolute. The first to file wins where the divorce and financial case is to be dealt with.
Even under the terms of the government’s proposed deal for leaving the EU, the first-to-file-wins rule will still apply with the other 27 EU member states, although whether those countries agree to that is another matter.
And even if the dispute is between England and a non-EU country, the first to file for divorce can be decisive.
There are huge differences in financial outcomes, and the speed and ease with which a divorce can be obtained. In Spain, there is a simple no-fault divorce procedure that can take only three or four months.
By contrast, in Germany, couples cannot obtain a divorce before being separated for one year. In Switzerland, couples must be separated for two years and in Italy they must obtain a separation order, wait a year and only then file for divorce.
In England, orders for spouse maintenance are still common in many cases, whereas hardly any similar orders are made on divorce in Scotland. In most Scandinavian countries there is almost no spouse maintenance awarded, whereas generous orders are made in both Germany and Switzerland.
A French marriage contract, like a prenuptial agreement, may mean typically one party receives virtually no capital at all on divorce. In contrast, such an agreement would not be binding in England and they would receive at least enough money for rehousing and an income.
In Singapore, premarital and inherited or gifted assets cannot be attacked on divorce, whereas in England that happens regularly. In most continental European countries, the court has no power to order financial disclosure, an incentive for those with money not to tell the truth. In contrast, the English court orders extensive financial disclosure.
The simple fact is that until we have uniform divorce and financial claims laws throughout Europe or the world, there will always be forum shopping. That is perfectly understandable given the huge differences in outcome.
Of course, litigating over where any dispute about financial claims will take place can be costly, lengthy and emotionally traumatic.
In the case of Wermuth, Lord Justice Thorpe said: “A divorcing couple that has to litigate the consequences of the marital breakdown is not blessed. The couple that first litigates where to litigate might be said to be cursed.”
The stakes, however, are high, depending on whether spouses file for divorce first in the country which will give them the best outcome.
Mark Harper, Partner
This article was published in The Brief