In these circumstances, an English Court would often be asked by the person who would prefer the proceedings to go ahead in the other jurisdiction to “stay” the English divorce proceedings so that the divorce proceedings in the other jurisdiction can go ahead.
Similarly, the person bringing English divorce proceedings would apply to the Court of the other country to “stay” (put a stop on) those other proceedings so that the English divorce proceedings could go ahead. Such an application would be dealt with in accordance with the local law of that country/State.
If an application is made for a stay of English divorce proceedings in these circumstances, then the English Court would look at whether the balance of fairness and convenience means that it is more appropriate for the divorce proceedings to be dealt with in the foreign jurisdiction than in England.
If so, the English Court would stay the English divorce proceedings and allow them to proceed in the foreign jurisdiction.
If not, it would refuse the application for the stay in England so that the English divorce proceedings could go ahead.
It is however possible that the Court of the other jurisdiction could refuse to stay the proceedings in that country and so in some exceptional circumstances, a stalemate can develop between divorce proceedings issued in two different countries in which the Courts of each country think it is appropriate for the divorce proceedings to be dealt with there.
When an English Court is looking at the balance of fairness and convenience, it will look at various different factors including:
- The closeness of the country with the couple and the family.
- What would be fair to both parties.
- Domicile and Habitual Residence.
- The nationalities of the couple.
- In which jurisdiction the couple have their principal connections, for example, the location of their assets, any children, family etc.
- Whether there is any pre-nuptial agreement or separation agreement indicating where the couple would like any divorce to be dealt with.
- Whether the English Court is satisfied that justice will be done in the overseas jurisdiction. (This does not mean however that an English Court would say that a divorce should proceed in England simply because one party would be better off, for example, financially, with an English divorce).
Given the complexity of situations which can arise if proceedings are issued in competing jurisdictions, the delay this can bring to the divorce proceedings and the associated legal costs, it is very important that advice is taken from specialist family lawyers in all possible jurisdictions at an early stage as to the best way to tackle such issues.