Jurisdiction Disputes and Anglo-French/ European family law
Some couples on separation must decide where their dispute on children or finances will take place. This is known as a jurisdiction choice. Sometimes there can be a court dispute about this issue.
In many cases the rules are clear. For instance, under the Hague Convention 1996 on Parental Responsibility, then the dispute will be decided in the location where the child habitually resides i.e., where their home is.
For financial cases, the questions can be more complicated. For instance, the divorce can take place in one jurisdiction and questions of child maintenance can be decided in another. This will occur where spouses share a common nationality say of France or Germany - allowing the divorce to take place in those countries under EU rules. But child maintenance issues would be decided in England and Wales if the child lived there.
There can be a divorce race which will allow a divorce to proceed in the country where the divorce was issued first. There is, since the UK left the EU, less of a black and white outcome in these divorce races. For instance, the English court has the discretion to send the divorce to a court abroad if that court has a stronger connection with the case (for example parties living there for most of the marriage, or assets based there, or common nationality there, or a combination of these things).
The choice of jurisdiction matters for two important reasons. First the English courts offer more generous financial settlements, in most cases, than their European or other foreign equivalents. Second, the European continental legal systems operate marital regimes which fix in advance how the assets will be split. This is entirely different from the England and Wales system. Here assets are split on a discretionary basis according to fairness.
In financial cases clear advice right at the outset of a case is desirable about where is the best jurisdiction to issue. In some situations, there is no clear answer either way. There, parties should not rush to court to seize one jurisdiction and should instead focus on the main divorce issues.
For further bilingual advice please contact William Healing
or + 44 20 7409 1222