International Divorce: How to win the race to the divorce court by coming in second
First come, first serve: this is a basic principle of EU family law. In the case of a divorce, this means that the country where the proceedings were lodged first has priority. Without knowledge of the rules of the game in international family law and without taking prompt action, a spouse must expect far-reaching consequences in such cases, which can lead to considerable financial disadvantages. However, it is not always the one who is the first to file the proceedings who wins. In this article we explain what is important in the race of the courts.
"So many years we've tried, to keep our love alive, but baby it ain't over 'til it's over"
…and while he still hopes that Lenny Kravitz’s words are true she has gone behind his back and issued for divorce in a foreign country which she thinks will be more favorable to her…
What sounds like the bad ending of a romance novel is the reality of international family law in the 21st century. Under the Brussels IIa Regulation, in proceedings that can be initiated in two or more EU member states, the country where the proceedings were initiated first takes precedence. This is a basic principle of EU family law. The second issued court has the duty to stay proceedings whilst jurisdiction is being examined in the first state, and, if jurisdiction is accepted in the first court, must then dismiss the second-issued proceedings.
First come, first serve?
"First come, first serve" is often the simple advice we have to give when our clients contact us at an early stage. At this point, most clients have not yet made any firm decision about the future of their marriage. Clients often only seek initial advice and to work out their options. Further steps, especially the initiation of secret divorce proceedings, are neither planned nor intended. They may not have made the final decision to divorce. Indeed, to petition at this stage might run counter to any residual hopes of keeping their marriage alive, an important consideration for the family and any children who may be involved. However, they are also often not aware of the possibility of an international divorce due to their different or multiple nationalities and places of residence.
This means that instead of providing assistance in resolving the relationship issues, in international cases these discussions require a different stance. Instead of helping to solve the relationship issues, we often have to urgently advise our international clients on how to secure jurisdiction in the "most favourable" country. This is the inevitable consequence of the Brussels IIa "first past the post" system and a circumstance that also applies to the other spouse. And so the race begins.
The problem of forum shopping
In several cases we have been involved in, one party has secretly filed for divorce for example in England, supported by the hope that the financial outcome in English law may be significantly better than in other European countries. One might think that this would be the end of the matter for a divorce in Germany: if - as described above – a petition was then filed in Germany, the court there would have the duty to stay its proceedingswhilst jurisdiction would be examined in the UK.
However, not all is lost for a second-in-time German divorce: If the petition issued in England was rushed, the grounds for jurisdiction might not yet be fulfilled (i.e. the requirement of 6 or 12 months' habitual residence in article 3 of Brussels IIa). It may even be that the English petition does not satisfy the "irretrievable breakdown" requirement at this early stage. If either of those be the case, the court first seized must decline jurisdiction and/or dismiss the application. This would allow the other party to pursue his or her divorce petition in Germany, which may have a significant impact on the financial consequences of the divorce. Furthermore, many Germans living abroad are unaware that, as German citizens, they also have the option under certain circumstances to apply for divorce in Germany at the Schöneberg/Berlin district court.
Knowing the rules of the game
The concept of “forum shopping” has unattractive overtones. Without knowledge of these “playing rules” of international family law and without acting quickly, a spouse could expect long-term consequences in the event of a divorce in a foreign jurisdiction far away from home or in a jurisdiction that is unfavorable to his or her case. Under certain circumstances these could be irreversible and result in considerable financial disadvantages. For example, one particular obvious difference may result between financial proceedings in Germany and England when a marriage contract exists: According to common law in England, this is not binding on the parties to the divorce. It may be a relevant factor to the court in England (since the Supreme Court's decision in the Radmacher v Granatino case), it may even be determinative of the outcome. But ultimately the court retains discretion and has to consider all the factors set out in s.25 of the Matrimonial Causes Act 1973. In roman-law countries, however, a contract is a contract.
As a law firm, we have many years of experience in international divorces and are one of the few law firms in Germany specializing in international family law. This in particular includes high net worth families (industrialists, expats, etc.), where the choice of jurisdiction can make a difference in the millions. We have a worldwide network of family law specialists at our disposal who can assist us in handling your case or take over the representation in the issued jurisdiction. As you can see, Lenny Kravitz was right all along: "It ain't over 'til it's over". We would be very happy to support you in “court race matters”.