Forum Shopping – where should I get divorced?

Sometimes when a couple divorces it is important to consider which country should and can deal with the divorce. This might be relevant if you were married, for example, in another country but then moved to live here. This might also be relevant if one spouse has moved abroad on the separation. If there a pre-nuptial agreement which stipulates which country’s laws should deal with the divorce then this also needs to be considered.

It is important that in these scenarios expert family law advice is obtained at the earliest opportunity from family lawyers in all the relevant countries. By doing so you can check which countries have jurisdiction and which might be the best country for you to be divorced in from a legal and practical perspective. This is known as “forum shopping”.

Sometimes there is a race between spouses to issue the divorce proceedings in one country before the other spouse does so in a different country. Consequently, taking specialist legal advice from family lawyers in the relevant countries quickly is crucial.

The recent case involving Charles Villiers, a relative of the Duchess of Cornwall, and his wife Emma Villiers highlights these jurisdictional points. The Supreme Court’s decision about Mrs Villier’s claim for maintenance from her husband to the English courts after the Scottish courts dealt with the divorce is awaited. They spent most of their married life in Scotland but Mrs Villiers moved to England with their daughter a year after they separated in 2013. They both issued divorce proceedings; Mr Villiers in Scotland and Mrs Villiers in England. The laws in England and Scotland are different and crucially the maintenance provision to Mrs Villiers would be much more generous under English law than under Scottish law.

This case demonstrates the need to check which jurisdiction is best for you if there are different options, i.e. the need to go “forum shopping”!

Please contact Sarah French or another member of our Family Team should you need any family law assistance.