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David Hodson on International Family Law: Too many international cases spoil the family justice broth?

Date:4 APR 2014
Family lawyer

International Family Law Practice by David Hodson

David Hodson

'Very serious issues ought to arise as to just how much time of an English court these parties should be able to take up in these preliminary skirmishes, whilst squeezing out the many needy litigants who need precious court time to recover their children from abduction or seek their return from care, and other such issues.'

These remarks by Holman J a week or so ago in the English High Court in Chai v Peng [2014] EWHC 750 (Fam), [2014] 2 FLR (forthcoming) have thrown again the spotlight onto the resources of the overstretched English family justice system being used by international cases especially in jurisdiction disputes.  This particular case concerned a Malaysian family with, as with many international families, a home in England and a forum dispute as to whether the proceedings should be in England or Malaysia.  A similar dispute, also Anglo Malaysian in which my firm was involved, was reported in the same week after a judgment from the Court of Appeal on jurisdiction.  There are many others.

Holman J said the case had thus far had 6 days in court with another 10 days for the forum hearing anticipated in October and fees to date of about £1.6m.

But targeting either the international parties or their lawyers is shooting in the wrong direction.  The problem, if it is a problem, lies far closer to the High Court and the Court of Appeal as well as the legislation.  In several instances, England is very liberal in our interpretation of jurisdiction with the consequence that the doors to the English justice system are wide open to international families.  This is coupled with twin elements.  First, we should be rightly proud of the fairness of the outcomes in most of our cases, compared to some countries abroad, even though that fairness results in comparatively large awards.  Secondly, where a family has its original home, perhaps even its primary base, in another country or culture, perhaps ethnic or religious roots, with joint nationalities and strong connections abroad, one spouse instinctively feels cheated when the other forum shops (often secretly) to secure English jurisdiction.

So, in what ways have we thrown open our jurisdictional doors?

An obvious starting point is jurisdiction for divorce.  This is found in Art 3.1 of Brussels II.  The fifth and sixth indents are used by the forum shopper.  They rely on a very uncertain conjunction of habitual residence and residence.  At the moment we only have conflicting High Court decisions, the Marinos v Munro debate, as to whether habitual residence is needed only on the day of issue or for a 6 or 12 month period.  Many European countries require habitual residence for the longer period.  A strong view in England is Marinos which allows habitual residence only on the day of issue.  So an international family has several parallel residencies around the world including England and the forum shopper has only to pick one of them as their habitual residence on the day of issue of the petition and England welcomes the proceedings with open arms.  The Court of Appeal in Tan v Choy [2014] EWCA Civ 251, [2014] 2 FLR (forthcoming) recognised (per Aikens LJ) there was a legitimate debate on the meanings in Art 3.1 but decided that was not the appropriate case to do so.  In the meantime, we have the most liberal interpretation around Europe on divorce jurisdiction for international families.

The Government permitted in June 2011 the EU to make a major change in our law to prevent claims for needs, maintenance, when based only on sole domicile (the EU Maintenance Regulation).  Yet there are very many English domiciled people around the world who do not want their proceedings in the country in which they may now be resident, and yet are now denied English jurisdiction.  Their spouse however may be able to bring proceedings in their preferred jurisdiction on sole nationality or sole domicile.  This is quite rightly perceived as very unfair.  England is shutting its door to its long-term domiciliaries.  They respond by seeking jurisdiction in other ways whether arguing joint domicile or some form of habitual residence.  And so the English courts have jurisdiction disputes.  Allowing needs-based claims on sole domicile in non-EU cases would prevent many of these disputes.  Discretion still remains not to hear the case if there is a more appropriate forum elsewhere.  But it stops the disputes clogging up the English courts.

It is little surprise that over the past few years there have been an increasing number of domicile disputes.  Holman J dealt with one himself, subsequently concluded in the Court of Appeal (Ray v Sekhri [2014] EWCA Civ 119, [2014] 2 FLR (forthcoming)) in circumstances where it was found there was domicile in this country even though both parties were in Singapore and the mother had been ordered to return back to Singapore with the child when she allegedly abducted the child to England.

If there has been a divorce abroad, England still has jurisdiction to make a financial order under MFPA 1984 if there has been inadequate financial provision.  But on one interpretation of s 15.1A, introduced also at the time of the EU Maintenance Regulation, a party only needs habitual residence on the day of application to make a needs-based claim.  Yet ironically, if that person wants to make a sharing-based claim they need to have domicile or 12 months habitual residence.  So a sharing claim requires good connection with England and Wales.  A needs claim requires habitual residence of only one day.  The door swings open again.

There are other examples.

I do not suggest some of these jurisdictional positions are wrong; there should be available jurisdiction when there is a good connection with a country.  But it is wrong when criticism is then made of parties for arguing jurisdiction in circumstances where one spouse may genuinely and perhaps rightly believe their family roots are in another country and do not agree with England then seizing jurisdiction especially if after the unilateral, secretive acts of the other spouse.  It is wrong to make criticism when it is the very liberality of our jurisdiction which allows (even indirectly encourages) these claims to be brought in the first place.

A proper debate is appropriate but it should be analysing why we have this situation and not castigating the international families who then come to our courts.   

David Hodson is a Partner at The International Family Law Group LLP. 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 chair of the Family Law Review Group of the Centre for Social Justice.

David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). 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.