In recent football clashes, England and Spain have emerged as strong competitors. While the English men's team clinched the 2024 Euros, and the Spanish women's claimed victory at the 2023 World Cup, there is another battle happening off the pitch – a legal one. In the previous article, we explored Xabier's surprise upon learning that his wife, Sara, had filed for divorce in England. In this article, we will look at whether Sara was entitled to do this, what the "Brussels race to court" concept is, and if Spain has any say in the matter.
Understanding divorce jurisdiction in England and Spain
Each country applies its own legislation to determine whether it is competent to hear an application. In some cases, such as within the EU, this legislation is harmonised, meaning the same rules apply to all its Member States. But after Brexit, England operates under its own internal rules. When it comes to divorce applications, English law now mirrors, but does not exactly replicate, EU rules. Since Xabier and Sara are both habitually resident in England, English courts have jurisdiction over the case, meaning Sara was legally entitled to start proceedings in England.
The "Brussels race to court" and legal implications
Was Sara under a legal obligation to give prior notice to Xabier that she was going to file proceedings in England? While there may be ethical considerations and potential breaches of Spanish legal practices if her Spanish lawyer didn’t inform Xabier’s lawyer, the urgency of the matter in cross-jurisdictional cases allows Sara to file directly in court. This leads us to another fundamental question: is Spain entirely out of the legal equation, or does it still have a role to play?
The jurisdictional rules in Spain are linked to various EU regulations. Because Xabier and Sara have the same nationality, the Spanish courts also have jurisdiction. Therefore, there is nothing preventing Xabier from starting his own set of divorce proceedings in Spain, even if there is a prior divorce application pending in England. However, Xabier does have an obligation to make the Spanish court aware of this pending application, and the Spanish judge will have the ability (but not the obligation) to pause the Spanish proceedings.
So, which country "wins"? We are now in a jurisdictional conflict, a common scenario in UHNWI marriages, as these individuals are highly mobile and often have links, whether personal or financial, with various countries.
The solution to this conundrum has become more complex than ever before. If this scenario had occurred before the (arduous) implementation of Brexit, Sara would have won the infamous "Brussels race to court". The EU regulations are clear: if more than one jurisdiction is competent, the application that is first in time "wins", and the other one is dismissed. Many English family practitioners were very critical of this rule: it goes directly against the well-known flexibility of English family law, which does not believe in rigid rules, and it encourages litigation in an area of the law that should prioritise conciliation and mediation. But it also gives legal certainty, which is in a way incompatible with the flexible discretion afforded to English family judges. There is an eternal battle as to whether the law should be certain or fair, and there is a divide across the Channel as each legal system prioritises a different principle.
Post-Brexit changes to divorce jurisdiction in England
After Brexit, England has reverted to a prior rule for parallel proceedings: it is no longer a matter of which party is faster. The court, if asked to do so by the party who wants the proceedings to be resolved outside England, will consider which country has a closer connection with the case. If Xabier asks the court to consider this, and the court's conclusion is that Spain has a closer connection with the case, the judge will have the ability (but not the obligation) to send the case back to Spain and pause or 'stay' the English proceedings. In order to make this happen, Xabier has to make an application for a discretionary stay. Without this application, the English court will go ahead with its proceedings without further ado, given that it has jurisdiction.
What's next for Xabier?
English family judges often prefer to keep cases within their jurisdiction, reinforcing London’s reputation as the "divorce capital of the world." However, Xabier hasn’t lost his chance yet. He can still file for divorce in Spain and request a discretionary stay in England. While the outcome remains uncertain due to the broad discretionary power of English judges, Xabier decides to move forward. The reasons behind his strategy will be discussed in the next chapter.
Click here for the next part of our series as we continue to explore the complex legal landscape faced by international footballers and other mobile UHNWI living in the UK.
Want to hear more from us? 
