When separating couples have connections to more than one country, disputes over where divorce proceedings should take place can be costly and contentious. Nicole Phillips explores how family mediation can help couples understand their options and find constructive solutions. With appropriate specialist legal advice, mediation can reduce conflict, manage costs and support informed decisions about their future.
When a relationship breaks down and the family has connections with more than one country, one of the first and most consequential questions may be, where should the divorce and financial proceedings take place?
One thing that often surprises people is that they may be able to start divorce proceedings in more than one country. Often of even greater surprise is the fact that the countries they may be able to start divorce proceedings in, has nothing at all to do with the location of their wedding!
Jurisdiction concerns whether a court has the legal authority to deal with a particular divorce or application.
Forum concerns which court of which country should deal with the divorce or application, where more than one jurisdiction is available.
One spouse may be living in England, the other overseas, the family may have moved between jurisdictions during the marriage, and assets may be spread across several countries. Both spouses may have a legal basis for bringing proceedings in different jurisdictions, yet the consequences of divorcing in one country rather than another can be significant. This is because the law and legal principles that are applied on divorce can differ significantly between different countries.
For this reason, it may be in one person’s financial interests to pursue a divorce in one country over another.
These disputes are often described as “jurisdiction disputes” or “forum disputes”. They can generate urgent, expensive and adversarial litigation at precisely the moment when a family needs to make decisions about its future and think carefully about supporting any children through their parents’ divorce.
Jurisdiction and forum disputes are also often inherently risky, as the questions the court must determine are binary, so the stakes can be high. They can also take a long time to move through the court system. Court delays in England and Wales are lengthy and waiting several months (upward of 6 months) for a first court hearing is not uncommon.
More importantly, jurisdiction and forum disputes can be a big distraction from the real issues at the heart of a case, and the key questions that matter most to clients, namely, how do I get divorced and reach a swift and fair financial settlement? This is precisely what can make these cases so suitable for exploration within mediation even after a court application has been made.
Family mediation cannot replace specialist advice on international family law, however, where both parties are willing, and it is safe and appropriate to mediate, it may provide a constructive way to explore the forum issues, identify the clients’ priorities and, in suitable cases, agree a practical way forward.
What can mediation achieve?
Mediation offers a confidential, structured setting in which the divorcing couple can explore the issues underlying a forum dispute. It is not a substitute for the court’s determination of contested legal questions, but it can help clients make informed decisions about how those questions should be managed.
Mediation can help to identify real points of disagreement
Clients may begin with apparently entrenched positions about where to start proceedings. With careful exploration, it may become clear that their concerns relate to particular assets, the cost of proceedings, the need for financial security, the treatment of pensions, the arrangements for their children or the practicalities of attending hearings. Identifying those concerns can create scope for solutions that are not apparent from focusing only on competing legal positions. Jurisdiction may matter less than first assumed, and a negotiated compromise can be far more cost-effective than a forum fight, particularly in cases involving modest sums.
Mediation can support informed decision-making
International divorces often require input from more than one professional. Each person should obtain independent legal advice from a lawyer with appropriate expertise in the relevant jurisdictions.
I take an integrated approach to mediation which means sometimes bringing in third parties (including lawyers) to join and support the mediation process where appropriate and helpful. This means that a ‘jurisdiction neutral’ mediation approach can be taken, where both a foreign and an English mediator are present, so that legal information about the laws in both countries can be available to both clients, in real time.
This does not mean that every professional needs to attend every mediation session. A suitable approach may be to identify the questions that require specialist input from English or foreign lawyers, for the clients to obtain advice in a structured way and return to mediation once they understand the implications.
The mediator’s role remains to facilitate informed negotiation and communication, rather than to advise either party on the law or predict the court’s decision.
Mediation can help preserve the co-parenting relationship
Where children are involved, a jurisdiction dispute can intensify conflict between parents whose relationship will continue long after the litigation has ended. A process that allows the parties to communicate constructively may help reduce the extent to which the legal dispute spills over into their co-parenting relationship.
How might a mediation be structured?
Mediating a jurisdiction or forum dispute requires careful preparation. The mediator should establish the scope of the mediation, identify the relevant jurisdictions and understand whether proceedings have already been issued. The clients should be encouraged to obtain specialist legal advice before making decisions.
Conclusion
Jurisdiction and forum disputes can have far-reaching consequences for separating families. They require specialist legal analysis, and sometimes urgent court intervention. Yet the existence of a legal dispute does not mean that every aspect of it must necessarily be resolved through adversarial litigation.
Where appropriate, mediation can help parties understand the issues, test their assumptions, obtain the information they need and consider a proportionate way forward.
The objective is not to replace the court’s role, it is to help clients to make informed decisions about a complex international problem, while keeping costs, uncertainty and the wider impact on the family firmly in view.
Nicole Phillips, senior associate and mediator, Family Law in Partnership
