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Forum shopping in international divorce: how to protect yourself when the other spouse files first (EU, Brussels II ter)

In international divorce, timing can become procedure. In the EU, the first court seised often gets priority, while the second may be forced to pause.

This guide explains forum shopping, the effect of filing first, and what “lis pendens” means in practice under Brussels II ter / Brussels IIb (Reg. 2019/1111).

Includes a “first 72 hours” checklist and when a premium strategic review is worth it (mobility, mixed couples, children, assets in multiple countries).

When spouses have real links to more than one country, divorce becomes a jurisdiction problem before it becomes a merits problem. In the EU, the main framework for divorce jurisdiction and for preventing duplicate proceedings is Brussels II ter / Brussels IIb: Regulation (EU) 2019/1111. (Consolidated text: EUR-Lex / CELEX 32019R1111.)

This article focuses on procedural strategy in divorce (where a divorce can be filed, why “first filing” can matter, and how lis pendens works). It does not cover child abduction or emergency child return procedures. For that topic, see the separate guide: International child abduction (rapid guide).

1) What “forum shopping” is (and what it is not)

In plain terms, forum shopping means choosing – within the legal limits – the country/court where you start the divorce, from several possible options. Those options exist because EU divorce jurisdiction can be triggered by different connecting factors (especially habitual residence patterns and sometimes nationality), listed in Regulation (EU) 2019/1111. Source: Reg. 2019/1111 (CELEX 32019R1111).

What it is not: it is not “tricks”, hiding proceedings, manipulating service, or pressuring the other spouse. This guide covers lawful risk management and avoids any instruction that could enable abuse.

2) Why “who files first” can matter inside the EU

Between EU Member States applying the Regulation (note: Denmark is not bound by Regulation (EU) 2019/1111), Brussels II ter provides uniform rules on jurisdiction and coordination between courts, to prevent parallel proceedings. Source: Reg. 2019/1111 (CELEX 32019R1111).

The mechanism that makes “first filing” matter is lis pendens. In short: if the same divorce case is brought between the same parties in two Member States, the second court (seised later) must stay its proceedings until the first court’s jurisdiction is established; if the first court has jurisdiction, the second court must decline. Source: Reg. 2019/1111 (CELEX 32019R1111).

A crucial nuance: “first” means first court seised

Brussels II ter defines when a court is “deemed to be seised”. It depends on when the initiating document is lodged with the court (or received by the competent authority), provided the applicant does not fail to take the required steps for service afterward. Source: Reg. 2019/1111 (CELEX 32019R1111).

3) Lis pendens in practice (step-by-step)

  1. Confirm whether the cases are truly the same case. Lis pendens applies to proceedings involving the same cause of action and between the same parties in matrimonial matters. Source: Reg. 2019/1111 (CELEX 32019R1111).
  2. The second court must pause. The court second seised must stay proceedings until the first court’s jurisdiction is established. Source: Reg. 2019/1111 (CELEX 32019R1111).
  3. The first court checks jurisdiction under the Regulation. Divorce jurisdiction grounds are set out in the Regulation. If no jurisdiction ground applies, the court must declare it has no jurisdiction. Source: Reg. 2019/1111 (CELEX 32019R1111).
  4. If the first court has jurisdiction, the second court must decline. Source: Reg. 2019/1111 (CELEX 32019R1111).
  5. If the first court declares it has no jurisdiction, the second court can continue. Source: Reg. 2019/1111 (CELEX 32019R1111).

Example (EU-to-EU move)

Spouses lived together in Belgium, then one spouse relocated to Romania. If spouse A files in Belgium and spouse B files shortly after in Romania (same parties, same divorce claim), the Romanian court may be obliged to stay the Romanian case while Belgium’s jurisdiction is assessed, and then decline if Belgium is competent. Source: Reg. 2019/1111 (CELEX 32019R1111).

4) What Brussels II ter covers (and what it does not)

For divorce, Brussels II ter is primarily about jurisdiction and recognition of decisions on the dissolution of the matrimonial tie. It does not decide the substantive grounds for divorce and it does not regulate property consequences of the marriage dissolution. Source: Reg. 2019/1111 (CELEX 32019R1111).

Maintenance obligations are excluded from the scope of Brussels II ter because they are governed by a separate EU instrument (Regulation (EC) No 4/2009). Source: Reg. 2019/1111 (CELEX 32019R1111).

Practical takeaway: a “good forum” for the divorce-as-status might not be the forum that will efficiently handle property, maintenance, or enforcement. Strategy usually starts by separating the goals: status (divorce), money (property/maintenance), and enforcement (where assets/income are).

5) The first 72 hours: lawful, reasonable actions

If you learn that a divorce has already been filed in another EU Member State, the goal is not to “outsmart” the system. The goal is to avoid losing legitimate options through delay or confusion, while staying compliant with procedure and ethics and avoiding escalation.

  1. Confirm the basics in writing: court, case number (if available), date of filing, what is requested (divorce/legal separation/annulment), and whether the other court is likely first seised under the Regulation. Source: Reg. 2019/1111 (CELEX 32019R1111).
  2. Build a factual jurisdiction file: dates of moves, where you actually lived, employment, leases, tax records, school/medical links – anything that supports habitual residence patterns relevant to the Regulation. Source: Reg. 2019/1111 (CELEX 32019R1111).
  3. Identify the lis pendens effect: if you consider filing elsewhere, understand what the lis pendens rule is likely to do to the second case (stay/decline). Source: Reg. 2019/1111 (CELEX 32019R1111).
  4. Do not ignore service and deadlines: even if the case is abroad, non-response can cause procedural damage and higher costs.
  5. Coordinate advice: cross-border cases typically require local counsel in the filing state plus coordinated strategy for broader objectives (children, assets, recognition). Framework: Regulation (EU) 2019/1111.
  6. Avoid risky unilateral moves: do not attempt to evade service, do not create parallel proceedings “by reflex”, and do not take unilateral steps involving children. If the situation involves child relocation/retention, consult the dedicated guide: International child abduction (rapid guide).

6) Common traps

  • “Address on paper” vs habitual residence: jurisdiction in EU divorce is tied to the Regulation’s connecting factors, especially habitual residence patterns. Source: Reg. 2019/1111 (CELEX 32019R1111).
  • Filing a “backup case” without a plan: if there is already a first court seised, the second case can be stayed or forced to withdraw. Source: Reg. 2019/1111 (CELEX 32019R1111).
  • Assuming Brussels II ter settles finances: property consequences and maintenance follow other rules/instruments. Source: Reg. 2019/1111 (CELEX 32019R1111).

7) When a premium strategic review is worth it

A premium strategic review is usually justified when one wrong procedural move can lock you into the wrong forum for months or years. In practice, premium-level work is often warranted when you have:

  • High mobility: recent moves, multiple residences, cross-border commuting – jurisdiction becomes evidence-heavy. Source: Reg. 2019/1111 (CELEX 32019R1111).
  • A mixed couple: different citizenships and languages, multiple plausible jurisdictions. Framework: Regulation (EU) 2019/1111.
  • Children: even without abduction, cross-border parenting issues can create time pressure and connected proceedings. Framework: Regulation (EU) 2019/1111. For urgent relocation/retention scenarios, use the separate child-abduction guide linked above.
  • Material assets in multiple countries: real estate, bank accounts, business shares, crypto, debts – where enforcement matters and where “divorce as status” may not be the full solution. Source: Regulation (EU) 2019/1111.

8) Quick checklist: what to clarify before you react

Conclusions

In EU cross-border divorce, filing first can matter because Brussels II ter relies on the first-court-seised principle and a lis pendens mechanism that restricts parallel proceedings. This is not about gamesmanship; it is about clear facts, timely reaction, and lawful procedure. Primary source: Regulation (EU) 2019/1111.

Sources

CTA

If you have learned that a divorce has already been filed in another EU Member State (or you suspect a “race to court”), a short screening can clarify the likely forum under Brussels II ter, the lis pendens risk, and how to align divorce-as-status with your real priorities (children, assets, recognition). You can reach us here: Contact.

Information on this page is general and does not replace legal advice tailored to your documents and to the law applicable at the time of analysis.