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In some quarters,
forum-shopping is a dirty term, but in international family law it is often an
essential process. In fact, it could even be considered gross negligence if a
divorce lawyer were to select the appropriate jurisdiction based on the location
of the lawyer's office rather than on the best interests of the client.
The very idea of shifting the
law that governs the termination of a marriage is anathema to the tradition of
much of continental Europe and many other civil law jurisdictions. In such
countries the traditional rule is that the marital rights of spouses should be
governed by one regime, which should be fixed at the time of marriage. The
system is said to be one of total
immutability, meaning
that the regime governs the parties' rights throughout the marriage and is not
changed even if the parties relocate to another jurisdiction. In fact, total
immutability is always something of a fiction because the same law applied in
different judicial systems is likely to produce different results in practice.
By contrast, in common law
countries such as the United States, Canada, England and Australia, the courts
generally apply the law of the forum to divorce issues. This means that if the
courts in those countries have jurisdiction they will apply their local law to
the case, regardless of the law of the place where the parties were married,
where they were last living together, or their common nationality.
Obviously, as people travel,
set up residences in different countries, and become involved in international
business (and personal) affairs they necessarily expose their personal lives to
an array of different legal structures.
If the client has the option of bringing
suit in more than one jurisdiction, it is absurd to suggest that the lawyer
does not have a serious obligation to consider which jurisdiction would likely
yield the preferable result.
Some examples of completely
appropriate forum selection, drawn from the author's experiences with clients
globally, are as follows:
H and W are Americans. They
move to Russia (or to any one of a host of countries whose family law systems
have little or no disclosure rules or are corrupt or otherwise dysfunctional)
so that H can work for a major Russian finance company. He does very well
financially but the marriage does not survive. W discovers that H is cheating
on her and she announces her intention to separate. H then informs her that he
is no longer employed by the same company (or perhaps that his company has
demoted him or the reader may imagine any one of a host of other possible
stories); that he is broke; that he will divorce her in Russia; that he knows
“how things are done” in Russia; and that she will get nothing unless she
settles on his unfair terms.
In these circumstances, would it be
“immoral forum shopping” to find a way for W to delay the Russian proceeding
and to bring suit in the prior matrimonial domicile?
Or let us consider the situation when W from New York marries H from
(let’s say) Cyprus. They live in New York and have a young child. H then
successfully persuades W to move to Cyprus for a year. They live with his
family. W is treated badly, both emotionally and physically. H refuses to allow
her to return home to New York with the child. His family is very influential
in the local town and H asserts that his brother-in-law the mayor “runs” the
court and that she will lose custody of the child if she continues to talk back
to his mother or if she does not obey him in other ways.
Or what if the country is a Sharia law
country and H is a Muslim and W is not? (Or perhaps W is a Muslim and H
threatens to claim that W is a bad Muslim?)
In such circumstances would it be
inappropriate to counsel W as to ways in which she might try to shift the
jurisdiction to one that would provide her with fair treatment?
A U.S. district court judge
called it correctly when he insisted that [i]n reality, every litigant who files a lawsuit engages
in forum shopping when he chooses a place to file suit. International family lawyers work to
assist their clients in that process.
In one case, a court expressly
acknowledged that the plaintiff had chosen to move to the state in order to
benefit from the liberal divorce laws in that state. The court found that was
perfectly appropriate and did not justify a stay or dismissal of the case.
On the other hand, forum
shopping is generally seen as particularly inappropriate when it is intended to
secure a more sympathetic forum in a child custody case. Indeed, courts have
found that the Hague Abduction Convention was designed to deter parents from engaging
in international forum shopping in custody cases. Specifically, the Hague Convention attempts to
prevent situations in which a
parent dissatisfied with current custodial arrangements flees with the child to
another country to re-litigate the merits of custody and to obtain a more favorable
custody order.
Nonetheless, it may well be in the best
interests of a child to remove the child from a forum which does not apply the
best interests test in child custody cases to a forum which has a “better” law and
practice in such cases.
Clearly, in very many international
cases these issues are complex. Just as clearly, this is an area in which
expert legal guidance from experienced international family law counsel is
usually absolutely essential.
[1] New York attorney Jeremy D.
Morley handles international family law matters globally, always working with
local family law counsel as appropriate. He can be reached at www.international-divorce.com. He is the author of the following
major treatises on international family law:
International Family Law Practice and
The Hague Abduction Convention.
