On 1 January 2021 the UK left the European Union for legal purposes. Until then we applied European rules of family law including the divorce race rules. The first party to issue a divorce would win a race to court. They secured the right to have the divorce heard in the country of their choice.
This could be very advantageous for example to secure a higher or lower financial settlement depending on which spouse they were. Most continental EU countries or example make lower awards to the financially weaker party than the UK.
This could also lead to surprising outcomes on where the divorce was held. A Spanish spouse arriving in London could establish a right to divorce the moment she and her family touched down in London, even after a long marriage living abroad. Equally a spouse living in London for 20 years could, provided they had shared foreign nationality with the other spouse, issue a divorce in their home country without setting foot there.
The race to court was particularly common in divorces involving the UK. The English courts are more generous than courts in other countries towards the financially weaker party in the marriage.
Since the legal Brexit at the start of 2021 there are new rules. The English courts now have a discretion whether to keep the divorce case or not. This power exists even where the English court is second. It does not matter necessarily whether the English divorce was first or second in time. The decisive factor is “closest connection”.
The UK courts take into account a number of factors in determining closest connections, such as nationality, location of assets, where the parties work and live and where the children live.
But other psychological or soft factors come into play. The English court for example might be swayed by how far the divorce has advanced in either country.
This system is expensive and imperfect. It results in a trial within a trial just to decide jurisdiction. This means lots of up front costs for the parties before the divorce has proceeded far.
The outcome is discretionary and often difficult to predict.
The foreign court might not wait for the English court to decide on the forum issue. It may instead march on with the divorce. The English court has powers to personally order one party to stop the proceedings abroad (with damages in favour of the other party for breaking the order). But the injunction order only attaches to the person and not the foreign court.
The forum non conveniens rule can therefore lead to duplicated proceedings and irreconcilable decisions. It is costly and uncertain.
Early specialist advice is very important to decide whether the risks of fighting a forum case are worth it, and whether instead it might be better to seek an early negotiated outcome of everything, or at least to agree the place of the dispute so a normal divorce can proceed.