Which Court Has Priority in an International Divorce?
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Serena Sandhu
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International divorce: which country’s Court takes the lead?
When it comes to divorce or other family matters that involve an international element, there are various factors which must be considered to determine which jurisdiction is best placed to deal with the case. The decision can significantly affect the financial settlement and outcome of the proceedings.
For couples with international ties, those who live in more than one country, hold dual citizenship or have assets across jurisdictions, deciding where proceedings should take place can dramatically affect the outcome, particularly in relation to financial settlement and child arrangements.
The 2024 case of SK v RR provides insight for those involved in international separation. It shows what factors the courts in England and Wales will consider when deciding which country’s courts are the appropriate forum in international family law disputes.
What happened in SK v RR [2024] EWHC 1418 (Fam)?
The case involved an Indian couple who married in India in 2019. Shortly after, the wife [RR] joined her husband [SK} in the UK on a spousal visa, and for the next several years, the couple travelled back and forth between UK and India.
In April 2022, the husband filed for divorce in India. Eight months later, the wife, filed her own divorce application in the court of England and Wales, where she was residing at the time.
The husband argued that the English proceedings should be dismissed because the Indian courts were the most appropriate forum to deal with the divorce and any related financial matters.
What is forum conveniens?
The case turned on the legal principle of forum conveniens, a legal doctrine that asks which court is the most appropriate forum. English courts have the power to stay [pause] or dismiss proceedings if they believe another jurisdiction is best suited to deal with the ongoing proceedings.
The decision is based on “the balance of fairness.” The courts look at a range of factors when deciding fairness, including the habitual residence and domicile of each party, the location of matrimonial assets, the connections of each party as to the competing countries, where the relevant events and alleged conduct occur and whether substantial justice can be obtained given the laws of the country in question.
It is important to note that the most geographically convenient court is not always the most suitable or appropriate.
Arguments presented by both parties
The husband’s case was as follows:
- The couple married in India and maintained significant ties there.
- Legal costs in India would be substantially lower than in England.
- Serious allegations between the couple involved extended family members who were living in India, and required the Indian court’s determination of these matters.
- He had already incurred legal costs in the Indian proceedings.
- Any English divorce might not be recognised by Indian authorities, given the couple’s substantial connections to India.
Meanwhile, the wife’s case was:
- The husband was conducting his business and working in the UK when he filed for divorce in India.
- The couple intended to settle permanently in the UK.
- The only matrimonial asset, the family home was located in England.
- Allegations of abuse and controlling behaviour occurred in England, not India.
- The wife alleged that the marriage was abusive, involving threats from the husband’s powerful family. She feared for her personal safety if she was required to return to India for proceedings.
The Court’s decision
The court ruled in favour of the wife and ordered the husband to withdraw the proceedings in India and allowing the English proceedings to continue.
The Judge felt that the streamlined divorce process in England and Wales was better suited to the parties’ interests, and was concerned about the wife’s access to justice in the Indian courts. Even if the divorce were to be heard in India, the Judge thought it was likely that the parties would still have to undergo financial remedy proceedings in the UK, since both parties lived and worked here and this is where the only matrimonial asset is.
The Judge acknowledged that an English divorce may not be fully recognised in India. However, this point in India’s favour was outweighed by the couple’s connections to England and the practicalities of resolving all matters in one jurisdiction.
Why does jurisdiction matter in international divorce?
It is common for couples who have international connections to get divorced in more than one country. However, just because a country has jurisdiction, it does not mean it is the most appropriate place to exercise that jurisdiction.
Different countries’ courts apply different laws, and these can affect everything from property division and spousal maintenance to child arrangements and even how quickly a divorce can be granted. Some jurisdictions, including the UK, recognise the contributions of homemakers and favour a fair split of assets, while others make less provision for a financially weaker spouse. The speed, privacy and cost of proceedings also varies, as do protections available in cases involving abuse or safeguarding concerns.
Before Brexit, couples within EU countries could rely on a relatively simple rule – whichever spouse filed first would generally secure their preferred jurisdiction. This led to “petition races” where spouses rushed to file in their favoured court.
Since Brexit, jurisdictional battles have become more common, and the courts will conduct a detailed “forum conveniens” analysis to determine the best jurisdiction when concurrent applications are made. Speed still matters, since being first to file and incurring costs in a particular jurisdiction remain factors courts consider. But it is only one of many factors the courts will scrutinise, as SK v RR shows.
Get expert legal advice on international divorce
Those contemplating separation, and who have an international element, should understand their jurisdictional options before taking action as there can be tactical advantages to your choice.
At Osbornes Law, our experienced international family law team can help you:
- Understand where you can file
- Choose the most favourable jurisdiction
- Navigate cross-border divorce proceedings
- Secure a fair and enforceable settlement
Please contact our experienced team of international family law solicitors by:
- Filling in our online enquiry form; or
- Calling us on 020 7485 8811.
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