21 July 2010

The controversial comments made by LJ Thorpe last Tuesday in the Court of Appeal in Golubovich [2010] EWCA 180 raise many issues, on some of which there is comment this week with some of the bigger policy issues dealt with next week.

My fellow Jordans columnist, Sandra Davis, has already made some strong trenchant remarks with which I agree. The very wealthy Russian husband and his young Russian wife had close links with both Moscow and London and engaged in the inevitable and very expensive forum dispute. The unexpected was the husband's forgery of a Russian divorce, rumbled by the English court, followed up by his breaching a Hemain anti-suit injunction and obtaining a Russian divorce in the hope of stopping any claims in England. Apart from the surprising decision to recognise that divorce despite public policy reasons not to do so as it was obtained in breach of an English order, the Court of Appeal was clear that they would allow the wife remedies whether under an English divorce or Part III MFPA 1984.

However in condemning what he described as a "crude race, pitting one jurisdiction against another and avoiding any judicial appraisal of where the balance of fairness and convenience lay", LJ Thorpe said that the much maligned first past the post, lis pendens, system applicable within EU member states would have avoided this unnecessary, time-consuming and expensive jurisdictional battle.

This is of course absolutely correct. The law of jurisdiction granted to the first to issue provides certainty but at the cost of any discretionary consideration of fairness and connectedness. This is its appeal to civil servants and policy makers.

What is entirely missing however is any opportunity of fairness of outcome. On the basis of first to issue law, if this Russian husband had issued first, perhaps when his wife knew nothing about any marital unhappiness, then she would be confined to presumably bad financial provision in Russia. It is this complete unfairness which is absolutely wrong and unjust about first to issue. It is why it must never be extended beyond the European Union, and hopefully amended within the EU very soon.

My firm, The International Family Law Group, has received hundreds of enquiries from recipients across Europe of unexpected divorces, without any prior notification in circumstances where they had not appreciated the marriage was in major difficulties and yet they find their divorce in a country with which they have relatively little connection. When they also find the financial outcome will be very poor, unfair in English terms, simply because of the first to issue law, real anger and resentment sets in. Prospects of future co-parenting diminish.

The answer to the forum litigation in this Russian case was not to look yearningly at the first to issue principle. The answer lies elsewhere, which will be covered next week.

David Hodson is a Consultant at The International Family Law Group. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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