The Closest Connection Test
Around the world when there are family court proceedings which could be heard in more than one country, criteria are needed to decide where the proceedings should go ahead. Different countries adopt different criteria; but the one used across many common law, English-speaking and other countries is that of the country with which the family has the closest connection. Technically it is known as forum conveniens, or by its negative, forum non conveniens (where the judge considers that the country is not the most convenient forum). It involves a degree of discretion, looking at all of the circumstances.
A range of factors may be considered (but all the circumstances concerning the family will be taken into account by the arbitrator). The international jurisprudence on closest connection in the context of matrimonial disputes indicates that the considerations include:
- The remedies available in each country, including the possibility of dissolution of the marriage, provision for parenting arrangements of children and outcomes in financial matters.
- The cultural background of the parties.
- The religious background of the parties if this has any relevance to the countries concerned and their national laws.
- All factors relevant to a financial application if this is likely to follow the divorce.
- The time the parties had spent in each jurisdiction.
- The location and control of their assets, marital and non-marital.
The location of any pensions or superannuation.
- The parties’ familiarity with both countries.
- The parties’ familiarity with language used in each country.
The prospect of enforcing orders in both countries.
- Nationality, domicile and citizenship.
- Where the parties lived and worked during the marriage.
A more substantial paper in respect of the closer connection test, taken from case law and statute from many countries around the world, has been prepared for use of the arbitrators and parties in the scheme.
There is an extensive questionnaire for each party to show the connections and links with each country. This will significantly assist the arbitrator and the decision about which is the more appropriate country.