Financial settlement upon divorce can sometimes vary enormously from one country to another. This can result in a husband and wife both “racing” to start proceedings in one country over the other (depending on where they understand it is best for them respectively to get divorced, e.g., where they are likely to obtain the most favourable outcome or what the grounds for divorce are in a particular country, as well as whether a Pre-nuptial agreement will be recognised).
This can often mean that there is subsequent expensive litigation through the Courts to determine which country has jurisdiction to hear the case (this will depend on such factors as whether there is a sufficient connection with a particular country to obtain a divorce there but also whether the Petition for divorce in that country – if there is more than one country to which there is a sufficient connection – was first in time).
The International Family Law Arbitration Scheme (“IFLAS”) has announced a forthcoming Scheme set up to deal with such disputes to determine to which country the husband and wife (or husband and husband/wife and wife/civil partners) have the closest connection.
David Hodson, one of the lawyers who developed the Scheme, together with Patrick Parkinson, believe that this will be a “fairer” way of dealing with such matters.
The new Scheme is due to be officially launched later this year on 4 September and the relevant individuals will be able to complete an initial questionnaire online and they will thereafter be allocated an arbitrator from a third country – a country to which neither party has any connection.
Patrick Parkinson believes this part of the Scheme is key, explaining that “At the moment, forum disputes are heavily skewed to whichever party is able to manoeuvre the forum dispute to be heard in their country. Having a third country arbitrator is like having an umpire in a sports event who is not from either of the competing countries. This is impossible under any national justice system, but for the first time is possible with IFLAS”.
This seems like a very exciting development and provides another option for parties. In an appropriate case, arbitration can have several advantages such having the benefit of the particular chosen skills and knowledge/expertise of the arbitrator, flexibility of the process and timescales depending on what suits the parties involved, as well as reduced costs.