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29/11/2012 By: Rose-Marie Drury
It’s that time of the year. With Christmas round the corner everyone seems to be talking about one thing: shopping. But last week a different kind of shopping hit the headlines – “forum shopping” – which is all about choosing which country you get divorced in when you or your spouse have connections to more than one.
First came the news that the Court of Appeal refused to overturn an English divorce when a Brazilian wife called Mrs Cattin argued that her divorce from her British husband should be dealt with in Brazil.
Boris Johnson then suggested that the wives of billionaires should flock to London to “take their husbands to the cleaners”. Perhaps this was slightly tongue in cheek but who knows with BoJo!
Lastly Lithuania confirmed it was signing up to European rules which mean that, when an “international couple” is getting divorced in one country, they can choose the law of another country when it comes to sorting out the finances.
For many people the idea of getting divorced in a foreign country seems, well, foreign. Boris Johnson’s invitation to billionaires’ spouses suggests shopping around is something only wealthy jet-setting couples do. But is this actually right? Probably not. Couples with much less money can still have choices to make that will have a big financial impact.
So what is forum shopping? Why would someone want to divorce in London? Why did Mrs Cattin lose her argument to have her divorce dealt with in Brazil? And why is Lithuania joining the club of fellow European countries who want to be able to use another country’s law?
Forum shopping is choosing which court should deal with your divorce. Normally the court that does the divorce will then also handle the money or children issues. There are differences in national laws that may mean one court would be more favourable to you. For divorce purposes England and Wales are treated as one place and with our sharing principle we are known for being one of the most generous of places to get divorced if you’re the one making the claims. London in particular is often called the divorce capital of the world.
If you’re getting divorced in England or Wales, you can choose any court. Even within this area there are regional differences. Some courts for example tend to order higher maintenance or a longer payment period than others. But, when it comes to other countries, there are rules that apply to your choice. Most countries need you to have some connection such as nationality or residence .
It is fairly common in today’s world for more than one country to be a possibility for the divorce. Between most EU countries it can be a straight race to get in first. If you snooze you lose. Outside Europe it’s different and will often come down to which country has the strongest connection to the couple or marriage – for example where any properties or savings are. In the Cattin's case, the couple had spent their married lives in Britain and Mrs Cattin had only recently moved back to Brazil. That was why England won.
The choice of legal system is another complicating factor. If you get divorced in England or Wales, our law will always be used even if one or both partners come from another country. But, now Lithuania has joined in, there are fifteen countries in Europe who have agreed to give couples the option of another country’s law. So, if two Italians are getting divorced in Lithuania, the court there will use Italian family law. This is one of the points that needs to be considered very carefully if you are in a position where you might be moving around and a pre-nup could be very important in making the choice.
You can’t afford to take chances where there is an international aspect to your divorce. If you don’t act quickly, and take legal advice about your options, it could make a huge difference to your divorce settlement. You can read more about the potential issues and your options in our international divorce section.
Rose-Marie DruryFamily Law SolicitorManchester