Forum Conveniens in the context of divorce and finance proceedings: a welcome change?

BREXIT

Forum Conveniens in the context of divorce and finance proceedings: a welcome change?

One of the first changes family lawyers in England and Wales will be thinking about following the post-Brexit transition period is that we are no longer signed up to Brussells II (Council Regulation (EC) No 2201/2003 of 27 November 2003, concerning the jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility). Before 31 December 2020, these rules applied whether a case was domestic or an EU or non-EU country was involved. The grounds of jurisdiction for all divorce cases commenced in England and Wales are now set out in the Domicile and Matrimonial Proceedings Act 1973.

In relation to choice of forum for divorce (and almost always consequential financial remedy proceedings), the rule prior to 1st January 2021 was that the country ‘second in time’ to issue their divorce petition was required to stay the proceedings if the other proceedings were ‘first in time’, provided there was jurisdiction. As financial outcomes on divorce can differ to such an extent from country to country, parties would therefore often engage in what was referred to as a ‘jurisdiction race’ to court. This race would be to issue proceedings in the court most advantageous to them. This often involved arranging for clients to have quick consultations with family lawyers in other jurisdictions, in order to find out which court would be likely to provide a more favourable outcome (often referred to as forum shopping). First in time was a definitive test for the seizing of jurisdiction.

Following the end of the transition period, the concept of ‘Forum conveniens’ in the context of finances on divorce is now back in the arena when determining whether to stay the proceedings issued in one country where they are also issued in another. The ‘closest connection forum test’ will apply from 1 January 2021 and ‘first in time’ will no longer be the definitive test for establishing jurisdiction.

Some may say that there was some comfort under Brussels II in terms of knowing what the ‘rules’ were and that this provided clarity. Another line of argument is that this process following Brexit will be fairer, as the court will have the ability to hear arguments and decide on the appropriate jurisdiction. This may serve to protect the financially weaker party, who may not be able to obtain legal advice immediately and is then trapped in a disadvantageous position, being forced to enter into financial proceedings in a jurisdiction which they would have been advised against choosing. Or, indeed, a party who had received no indication from their spouse that they had been planning to issue divorce proceedings and have no power to challenge the jurisdiction. A ‘forum conveniens’ approach would decide which jurisdiction would be the most suitable and appropriate in the context of all the relevant factors.

This contrast between a hard and fast, decisive rule and an element of discretion is indicative of the differences between Common Law and Civil Law jurisdictions. Brussels II was a European instrument which introduced rules-based Civil Law elements into our legal framework. In respect of children matters, the changes will be more subtle because we are signed up to the Hague Convention 1996, which will become the most important instrument on cross borders issues concerning children with our EU friends.

Many family lawyers in England and Wales were grateful for the clarity on forum for divorce brought by Brussels II, whereas others resented that the discretionary element had been removed. Whatever side you are on, the change has come and it is likely to be here to stay. ■

Olivia Longrigg

Olivia Longrigg

Solicitor Dawson Cornwell