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What is a jurisdiction race – and how to win it !

22.07.2018 / Kerstin Beyer

What is a jurisdiction race?

Let’s give an example from a recent Court of Appeal decision: The wife issued divorce proceedings in England on 26 October 2015. The husband issued divorce proceedings in Germany on 20 January 2016. This example shows that both spouses clearly wanted to get divorced. But they tried to issue divorce proceedings in different countries or jurisdictions.

Different countries – Different outcomes

Why would they do that? Because the outcome can differ a lot depending on where someone issues divorce proceedings. Women will often try and issue in England in the hope that an English Court will give them generous financial settlements and spousal maintenance. Husbands will often try an avoid exactly that by trying to issue elsewhere, say in Germany. We are generalising of course.

In circumstances where both parties to the marriage have issued divorce proceedings in different countries an EU Regulation states that the person who issues first wins. This EU Regulation is called Brussels IIa. The wife won in this case given that she issued divorce proceedings three months before her husband. That meant that the wife could proceed with her divorce in England whereas the husband’s divorce petition in Germany had to be stayed.

So if you consider getting divorced then you must investigate first as to where you (and your spouse) can do that. If you have the option to issue in more than one country then do the following: be cautious and act fast by getting legal advice. You could find yourself in a jurisdiction race.

How to win a jurisdiction race?

You must issue first, ie before your husband and/or wife. English Courts will write the date and the exact time the petition was issued on the divorce petition. Once you have done that you must take all necessary steps to effect service. This is very important. If you do not do that you could loose the jurisdiction race just because you did not serve the papers correctly. In the above-mentioned case the wife served her husband with the divorce papers on 27 February 2016, ie just over four months after the date of issue.

The husband argued that she had been too slow and that he should therefore be allowed to proceed with his divorce in Germany. He argued that she should have effected service “as soon as possible” or “as soon as practicable”. But the English Court did not agree with the husband.  The matter went to the Court of Appeal and the Court of Appeal confirmed that the wife had proceeded correctly. So you win a jurisdiction race by issuing first in time and then making sure that you serve correctly by complying with the rules. There is no need for now to serve the divorce papers “as soon as possible” or “as soon as practicable”. But watch this space, the rules could change.

The decision referred to above is reported as Thum v Thum (2018) EWCA Civ 624.

Have we answered your questions? Please call Kerstin Beyer on 0207 9364644 to discuss your situation.

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