This practice consists of one of the spouses choosing the jurisdiction which is most favourable to the protection of his or her personal and property interests.
The types of divorce and their consequences can vary considerably from one country to another.
The choice of court may be of procedural interest, in particular for reasons of speed or cost.
In principle each national court will apply the procedure in force in its own country.
The choice of court therefore has a crucial and direct impact on the course of the divorce proceedings.
The choice of jurisdiction may also affect the law applicable to the divorce and thus the consequences of the divorce.
In fact, the applicable law in each country is determined by the conflict-of-law rules in force in that country.
The Monegasque courts will therefore automatically apply Monegasque law, unless the spouses are of the same nationality and request the application of their national law (Article 41 of the Code of Private International Law).
The choice of jurisdiction can therefore be crucial.
For example, the British legal system does not recognise the concept of separation of property as it exists in the Monegasque law.
One of the spouses, separated from property, could be required by the English courts to divide his or her own property by half on the basis of « fairness and equity ». Under Monegasque law, the matrimonial property regime and its liquidation are taken into account when determining and setting the financial consequences of a divorce
The financial consequences of a divorce granted under British law will therefore necessarily be different from the financial consequences of a divorce granted under Monegasque law.
Some spouses may quite legitimately be tempted to carry out a « market study » before taking their case to court.
Forum shopping, although legal, can lead to inequalities and procedural inefficiencies.
This is why a divorce cannot, in any event, be examined by two different courts, even if they both have jurisdiction.
In practice, it would be impossible to enforce two conflicting judgements.
However, the temptation may be great and it may happen that, without consulting each other, the spouses each initiate proceedings before the courts of a different State (lis pendens).
In such cases, only the court seised first has jurisdiction.
This means that the Monegasque courts, seised second, pursuant to article 12 of the Code of Private International Law, will be required to stay proceedings until the foreign court seised first has delivered its decision, and will relinquish jurisdiction if the said decision can be recognised in Monaco.
The Monegasque case law has clarified the rules governing the lis pendens exception.
Three cumulative conditions must be fulfilled :
- Two proceedings must be pending, one in Monaco and the other before a foreign court;
- The parties and the subject matter of the cases must be identical;
- The Monegasque proceedings must have been initiated second, after the foreign proceedings.
In this case, the divorce cannot be granted by the Monegasque courts.
Once you have decided to divorce, it is therefore essential to contact your legal advisor as soon as possible.
