As followers of our blog will know, we’re big fans of out-of-court dispute resolution at CFLP. Where we can help families keep their dispute away from court, we try to do that using our skills as collaborative practitioners, mediators and negotiators. We offer advice during arbitration and Simon Bethel acts as a qualified arbitrator for children matters (link to our announcement here). The launch of a new arbitration scheme for international divorce has recently caught our attention.
Many international families find at a time of relationship breakdown that two or more countries can deal with issues regarding their family. Whilst the laws about getting a divorce can be similar across some countries, the financial outcome for each spouse can be vastly different. Simply contrast the position in England where the court has power to make a “joint lives” maintenance order (effectively maintenance for life until remarriage or death unless varied) with the position across the border in Scotland where spousal maintenance is usually limited to a maximum of 3 years, if awarded at all.
Disputes about which country should deal with a divorce are known as “forum disputes” and here at CFLP we advise our clients on whether England is the most advantageous country for a divorce or other family proceedings – this is known as “forum shopping”.
Where there is a forum dispute with a country within the European Union (for example between England and Germany), the spouse who issues their divorce petition first will usually secure that country as the country which will deal with the divorce. As such, international couples are often faced with the difficult decision of whether or not to file a petition for divorce without informing their spouse in advance. This approach can of course create tensions which most families would wish to avoid.
The situation is different if the forum dispute involves two countries outside of the European Union; this then comes down to which country has the closest connection to the couple.
Forum disputes can be lengthy, costly and emotionally draining for all involved. It has long been our view that international separated couples having to make the decision on issuing a petition at such an early stage potentially increases the level of acrimony and does not work for families.
An innovative new arbitration scheme was recently announced and offers an out-of-court resolution for disputes of this nature. Arbitration is a relatively new introduction to family law (for details see here) and this scheme extends the scope of arbitration for family law matters. The International Family Law Arbitration Scheme (“IFLAS”) launches on 4 September 2017 and is intended to avoid forum dispute litigation. IFLAS will use qualified international arbitrators, appointed by the couple, to determine which country has the closest connection to deal with divorce and family matters. The scheme will hopefully avoid lengthy and costly proceedings in competing countries and allow the couple to control the process and timing of any decisions. We consider this scheme a welcome addition to the choices and options for separated couples.
If you’ve got any questions about international divorce or any other aspect of family law, do gives us a call on 01223 443333 and arrange a time to speak to Sue, Simon, Adam, Tricia or Gail.