Headline, May29, 2014

'''' A LAW SIRES ! : 

FOR EVERY DIRTY TRICK? ''''

MAKING WILY choices about policy jurisdictions is often criticised as  ''forum shopping''. But the stakes are high-ending up in the wrong legal system, or with the wrong approach-

May mean not just poverty but misery. Mr Morley says the differences between one divorce jurisdiction and another are far more than, say, playing a sporting fixture at home or away. But if you work up a table, you will see that a totally different rules apply.

So it is understandable that a disillusioned spouse, and his or her lawyer, will try hard to get the most favourable jurisdiction. Yet that can all too easily lead to each party starting or even finishing, a divorce in a different country.

Sorting out these cross-border legal wrangles can be colossally expensive.

A tussle between jurisdictions usually starts in six figures, in dollars, euros or pounds; when all four legal bills, of both sides' costs in both countries, are totted up, it easily shoots into seven figures. And it is hugely time consuming. 

The children involved may reach adulthood before the final verdicts are given.

International attempts to tidy up the law have made some things better, but not all. The European Union  -where 875,000 divorces divorces take place each year, a fifth of them binational-  introduced a reform a 2002 called Brussels II. 

This has largely stopped  ''forum shopping'' , with a rule that the first court to be approached decides the divorce.

The problem with this rule is that it encourages those in troubled marriages to end them, not mend them. Even if a marriage is doomed, the trend in family law is to resolve the dispute out of court, typically through meditation. 

A race to issue proceedings makes it much more likely that matters will get nasty as well as lengthy and costly.

David Hodson, an international family law specialist, notes sadly that  ''This law works against reconciliations and resolutions out of court. Cases can be won and lost by one spouse issuing a divorce a matter of minutes before the other spouse. That must be wrong.''

Brussels 11 also encourages some less scrupulous lawyers to behave badly, urging their clients to act fast and dirtily. 

A London divorce lawyer recalls a case when a husband from an overseas country had acquired his wife's European nationality by marriage, living briefly in her continental home country before moving to London.

Five years and two children later, the marriage was on the rocks, with the husband away working in East Asia. Without his wife's knowledge, he filed for divorce in her country, one of the strongest jurisdictions in Europe  -from her point of view. His only connection with it was his marriage to the wife he was trying to dump cheaply.

Had the case been heard in London, where both parties had much stronger links and had owned a home for years, she would have done far better.

To avoid such cases, a further EU measure, Rome III, tried to stipulate that a marriage should be ended only by the law that has governed it originally. That works fine in similar countries that divorce rules are highly codified, precedents do not matter and judges discretion is limited.

It already applies in some eastern European countries, so that Dutch courts, for example, will apply French law when dealing with a French couple whose marriage has ended during a posting in the Hague.

But such a rule works much less well when other systems are involved. English law is much more complex, and is based on intricate precedents and judges' discretion that cannot simply be looked up and applied. 

Even greater difficulties arise when couples come more distant countries.

Would a Swedish court want to apply sharia law  to a divorcing couple recently arrived from Saudi Arabia? Many Swedes worry at that. Mr Hodson complains that it would mean that:

''The essence of a country's community life found in its family laws is removed and replaced by the laws of another country''.

''In the United Kingdom, he says, it would be entirely against (national) law and policy.''  

The Honour and Serving of the Post continues.

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