Forum Choice

Forum Choice

Couples who were born and have lived and worked all their lives exclusively in the United Kingdom can only divorce in the UK.

However, couples who have a connection with a foreign country or foreign couples who have a connection with the UK may have a choice as to the jurisdiction (“forum”) in which they would prefer to divorce.

Issues of forum choice and jurisdiction are especially complex where the issue is the dissolution of a civil partnership or same sex marriage that was entered into in a country which recognises same sex marriages and expert legal advice is essential.

The connection such couples have with a particular forum may depend on a number of factors including nationality, domicile, business interests and residence.

The consequences of obtaining a divorce in one forum as opposed to another, may be very different. Couples who are divorcing (or seeking a dissolution) need first to assess the forum in which they may be entitled to divorce (or seek a dissolution) and, secondly, the forum which would be most favourable, taking into account the comparative financial settlements, costs, timescale and ease of enforcing orders obtained.

Within European Union countries (except for Denmark) it is crucial to be the first to issue proceedings in the chosen forum so as to prevent the other spouse from issuing in another less favourable EU country. Brexit means that this rule no longer applies to UK/EU cases instituted after 31st December 2020. However, it may still be helpful to be the first to issue. 

In the rest of the world, even though proceedings may have been issued in one jurisdiction, it may still be possible for the other spouse to pursue a divorce or dissolution in another jurisdiction. In those cases, the other spouse may be able to argue that the jurisdiction in which they have issued is the more convenient and appropriate forum.

In such cases, the UK courts will consider whether the UK proceedings should be stayed, depending upon a number of factors. These include which proceedings were issued first, where the family’s assets are located, where the parties last lived, the competing financial orders that can be made, and whether the foreign jurisdiction might produce a result contrary to the relevant UK court’s concepts of justice.

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