In the nearly two years since 1 January 2021, when the UK left the EU and ceased to be a signatory to Brussels II, family practitioners in England and Wales and their clients have found themselves facing a variety of new challenges. One such challenge was the change to the rules on jurisdiction in cases involving competing divorce applications in two European jurisdictions, and a reversion to the forum conveniens principle. Whilst this was already the applicable rule in relation to forum disputes involving England and non-EU jurisdictions, the result of English/European cases being dealt with under this principle invariably meant that practitioners could anticipate dealing with a much higher volume of forum disputes.
Nearly two years on we can see that as predicted this has been the case, and the legal basis for this has been well documented and discussed since Brexit. However, as these continue to become more commonplace it has become possible to identify some useful working practices and tips for cases in which practitioners may be instructed by an EU-based client in an English forum dispute.
Law and Procedure
Prior to Brexit, and under Brussels II, jurisdiction was based on who was first in time to issue. The reversion to the forum conveniens principle means that in cases of competing jurisdictions, an application needs to be made to the court and proceedings will be necessary in order to decide which is the more convenient and appropriate forum the hear the case, before the divorce and any financial remedy proceedings can be continued. Whilst the forum dispute is ongoing, the divorce proceedings in both jurisdictions should be stayed, pending the outcome of the forum dispute.
When such an application is made to the English court, it has a very wide discretion and will take into account a variety of factors, such as:
- the parties’ nationalities and domiciles
- location of their current matrimonial home
- where the parties have lived and worked during the marriage
- the location of their assets
- cultural background
- where the children were born and where they are, or will be, educated
- where the parties’ extended family live
- where the parties plan to retire
- existence of and stage reached in existing proceedings
- future legal costs
- availability of witnesses and documents
- likelihood of participation in continuing English
Generally, upon an application being made, the court will direct for the parties to complete witness statements setting out their case on why they say one jurisdiction is more appropriate than the other, followed by a substantive hearing in order to hear evidence and make a decision.
Whilst regard of course needs to be had to the legal points and discretion of the court, various practical points should be borne in mind order to maximise the chances of successfully making or defending an application.
Making the Application
The application should be made by the Respondent to proceedings in the jurisdiction they do not agree with, and should be made as soon as possible in the proceedings before any substantive steps have been taken in the action. This is partially to avoid wasting costs by engaging in an action that may be stayed, and partially because any such steps may result in a stay not being granted.
Whilst the first in time rule is no longer determinative, it may still be taken into account as part of the court’s discretionary balancing exercise, so divorce proceedings should be issued in the preferred jurisdiction as early as possible.
Preparing the Witness Statement (with a Language Barrier)
Given the variety of factors to be taken into account, it is important to take detailed and comprehensive instructions from clients. Details about their family and cultural background, and that of their parents and children; as well as the history of the relationship and marriage, will be just as important as aspects such as location of assets and the status of the proceedings in each country.
Whilst language barriers can make the proceedings overall more difficult, this is most evident when preparing a detailed a 15 or 20 page witness statement. Consideration should be given from the outset as to how lawyers will communicate with their clients. For example, a translator could be used or communications could be via the lawyers instructed in the client’s home jurisdiction, though this is likely to significantly increase costs for the client. Enquiries should be made to find out if they have a family member or friend who speaks English and is prepared to act as an intermediary when giving instructions.
When preparing the witness statement for a non-English speaker, particular regard must be had to FPR Practice Direction 22A and the source of the information, to ensure the wording is carefully checked with the client and translated to ensure it is clear which matters are within the client’s own knowledge, and which are matters of information and belief, and that they clearly understand what is being said in the statement.
When agreeing directions and deadlines for the preparation of statements, time needs to be built in for the extra delay the language barrier will cause. For example, you may think that with two weeks until the court deadline and an almost complete statement, this is plenty of time to finalise it. However, assuming the statement has been prepared by the lawyers in English it will need to be translated to the client’s language for them to review and make any changes. It will then need to be translated back to English in order to be lodged with the court. Depending on the length of the statement and exhibits, each round of translation can take up to a week. If further substantive amends are required and therefore further translation, this can be even longer.
Cultural and Legal Differences
Given a forum dispute by nature means two sets of proceedings in two jurisdictions, the client will likely have their own lawyers instructed in their home country. This can cause difficulties as the process and way the courts work may be different there. This can mean having to advise both them and their lawyers on why certain things have to be done in the English process, and having to give additional advice or persuasion if they are resistant to this due to the system they are used to.
In the event disclosure is ordered in the English proceedings, a less thorough duty of disclosure in the client’s home country can mean they and their lawyers are less willing and/or less able to provide the evidence required, if they would not have to provide this for the foreign proceedings. Additional due diligence on the part of the English lawyer may therefore need to be carried out in order to ensure the client has complied with their disclosure obligations and does not inadvertently harm their case in the English proceedings.
The client’s location also needs to be considered. A European based client may be expected by the court to attend the substantive hearing so that they can give evidence and be cross-examined in person, whereas in non-European cases the English court is likely to be more amenable to a remote hearing or video link. The client should be advised of this from the outset, and the potential harm to their case if they resist the court’s directions. If the client is unable to travel this should be made clear as early as possible and certainly no later than the first directions hearing, along with medical or other evidence in support.
Potential Benefits
Whilst forum proceedings will mean additional delay, cost and stress for the client, the implications are not all negative.
When faced with the significant costs and delay of a forum dispute before divorce and financial remedy proceedings can even be started, parties may be more open to negotiating on a without prejudice behind the scenes whilst the forum dispute is ongoing. Exchange of Forms E (or another form of financial disclosure if preferred) can be agreed, as can the relevant principles to be applied (again on a Without Prejudice basis, given the reason for the forum dispute will presumably be conflicting outcomes likely in each jurisdiction). The parties may therefore be able to reach settlement before a decision has been reached on jurisdiction, in a situation where if it were not for the daunting prospect of drawn-out forum proceedings, they may have been less inclined to do so.
Conclusions
Whilst forum disputes are nothing new for family lawyers, their use in English/EU proceedings mean they have become, and will continue to become, much more common. The discretionary and uncertain nature of the tests the court will apply mean it can sometimes be difficult to manage the expectations of clients, but by developing consistent and proven working practices lawyers can ensure that unnecessary costs, delay and disappointment for client are kept to minimum.
Article written by Michael Finnegan, Associate in the Divorce and Family Law Team.
Article also published in HNW Divorce Magazine Issue 15.