Divorce races: international forum disputes

In December 2015, the Irish court made a ruling that, unless successfully appealed, changes the approach to EU divorce cases.

In December 2015, the Irish court made a ruling that, unless successfully appealed, changes the approach to EU divorce cases. A husband had issued his petition in the Irish court. It was issued before his wife’s petition but the wife’s petition had physically been received by the English court before the husband’s petition had been presented to the Irish court.

The above may seem a very pedantic observation but in divorce cases where the courts of more than one EU member state have jurisdiction, there is a simple “first past the post” rule to determine which jurisdiction hears the case. The divorce is dealt with in whichever country the divorce petition is first delivered to the court. This can lead to a tense race which comes down not just to the date but also the time the petition has been received. The reason that can matter so much is because approaches to financial settlements on divorce can differ even within Europe. For example, pension sharing orders, a valuable remedy in England and Wales, do not exist in some member states.

It has always been accepted in England that EU law would focus on the issuing of the petition as there is no clear mechanism for determining the precise time of arrival of a petition dealt with in the court’s general post. To date, solicitors have taken petitions to court personally and waited to get them issued urgently to secure jurisdiction. The Irish judge, however, has interpreted the EU law as meaning the time the petition physically arrived at the court not the time and date the petition was issued. He concluded that England had jurisdiction for the divorce, not Ireland.

In light of this decision, it is more important than ever that people concerned to secure the most favourable jurisdiction for their financial claims seek specialist advice as early as possible.  

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