Brussels Beware
A paper delivered at the National Conference of the Family Lawyers’
Association of Ireland
Dublin, Saturday 27 January 2001
Introduction
On 1 March 2001 a new law entered
into force affecting the practice of every family lawyer in the
United Kingdom, and the Republic of Ireland, indeed, every family
lawyer throughout the European Union except Denmark (which has
declined to participate in the new regime). The fundamental changes
affecting international jurisdiction, recognition and enforcement
of matrimonial proceedings will be felt by everyone, not just
among the elite who specialise in high-profile international cases.
In any matter where both spouses are not British (or Irish) nationals
domiciled and habitually resident within the United Kingdom (or
Ireland) the effect of the new law must be carefully considered
by the family law practitioner immediately upon receipt of new
instructions. Failure to understand the new jurisdiction rules
could have serious implications for the client’s interests
and the solicitor’s professional indemnity insurer.
The participating member states
at present are; Austria, Belgium, France, Finland, Germany, Greece,
Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden
and the United Kingdom (including England and Wales, Scotland,
Northern Ireland and Gibraltar (?!) but not the channel isles
or the isle of man).
The new law is colloquially known
in the English-speaking jurisdictions as Brussels II. This is
because it was conceived as a Convention drawn up by the Council
of the European Union on 28 May 1998. As with any treaty, it was
originally intended that the Convention would have to be considered
by member states individually before implementation into domestic
legal systems. However, through some European sleight of hand
which no one can adequately explain, a decision was taken in Brussels
to implement the law as a Regulation of the Council. This means
it comes into effect in all participating European Union jurisdictions
(excluding Denmark) simultaneously on 1 March 2001. The full official
title of the new law is Council Regulation (EC) No 1347/2000 of
29 May 2000 on jurisdiction and the recognition and enforcement
of judgments in matrimonial matters and in matters of parental
responsibility for children of both spouses. Let’s agree
to continue calling this new creature Brussels II!
Scope
First, consider the scope of the
law. It applies to proceedings relating to divorce, legal separation
or nullity of marriage and parental responsibility for the children
of both spouses (including adopted children but not stepchildren
or children whose parents are not married). The concept of parental
responsibility under the law is not identical to that as understood
in the context of the Children Act 1989. It is probably intended
to include custody/residence and possibly access/contact and other
orders relating to children.
The law does not impact directly
on financial proceedings, for example, in relation to maintenance
or property adjustment. However, there could well be a profound
indirect effect on financial matters where, as in United Kingdom
and Ireland, financial proceedings on marriage breakdown are ancillary
to proceedings for principal relief which give the courts jurisdiction.
For example, if a divorce is granted in Germany there is no jurisdiction
in England and Wales for the courts to deal with matrimonial property
adjustment unless leave to proceed is first obtained pursuant
to Part III of the Matrimonial and Family Proceedings Act 1984.
The English case law says that such leave should not be easily
given. This may have to change now.
Brussels II does not affect the
recognition and enforcement of maintenance obligations within
the European Union. For such matters the Convention now known
as Brussels I (the Brussels Convention on the jurisdiction and
enforcement in civil and commercial matters 1968, incorporated
into English domestic law by the Civil Jurisdiction and Judgments
Act 1982) provides for reciprocal enforcement of maintenance including
lump sum maintenance. It is not intended that the new law will
affect Brussels I but fertile legal minds will no doubt be looking
for ways to connect the two.
Exclusive Jurisdiction
I cannot in this brief paper examine
all the important features of the new law. However, the fundamental
point is this: - where a party issues proceedings for principal
relief in a jurisdiction of one of the member states, the court
of the state in which proceedings are first issued shall have
exclusive jurisdiction. Any proceedings for the same relief
subsequently issued in another member state must be stayed.
No discretion is permitted, although there are some very limited
exceptions set out in Article 15 (manifestly contrary to public
policy, default judgment without adequate notice, irreconcilable
with an earlier judgment although the public policy test operates
only to allow non-recognition and does not affect jurisdiction
– Article 17).
So, for example, if divorce proceedings
are validly issued in Italy any divorce proceedings subsequently
issued in England must be stayed irrespective of the merits of
any of the usual forum conveniens arguments familiar to all family
lawyers. The balance of fairness and convenience is irrelevant,
the first person to initiate divorce proceedings will secure his
or her jurisdiction of choice.
Most English lawyers to whom I have
spoken find the inflexibility of this new law shocking. We are
used to our English judges applying common sense to determine
the most appropriate jurisdiction for divorce proceedings. Now
it will be possible for a party to start a divorce in a country
with which he or she may have very little real connection. A Swedish
national may be married to an English spouse and may have lived
in England for many years, raising a family there and building
up substantial assets within the jurisdiction. Yet he or she may
return to Sweden and establish habitual residence there for only
six months, then issue divorce proceedings there. The Swedish
courts will have exclusive jurisdiction and there is nothing which
the “left behind” English spouse and children can
do about it. Unless the English spouse can persuade the English
court to grant leave under Part III of the Matrimonial and Family
Proceedings Act 1984 there maybe significant difficulties in securing
an English property adjustment order in relation to assets within
the English jurisdiction.
The criteria for determining jurisdiction
are quite complex. The Appendix to this paper sets out the Article
2 provisions relating to jurisdiction in principal relief proceedings.
Essentially, the test is based on habitual residence or nationality.
In the United Kingdom and the Republic of Ireland domicile replaces
nationality as a criterion. Article 3 describes the jurisdiction
basis in matters of parental responsibility. Note that jurisdiction
is conferred only in the context of principal relief proceedings,
not generally, and is based on the habitual residence of the child.
Interestingly, Brussels II appears
not to allow parties to specify in a pre-marriage contract which
jurisdiction will govern their divorce. Contrast this with Brussels
I, which by Article 17 permits prorogation of jurisdiction by
agreement, so that parties may be sure which jurisdiction will
determine maintenance issues. Thus we have the paradox of pre-marriage
contracts which are only partially effective in specifying jurisdiction.
I think my practical approach to this conundrum will be to continue
to include comprehensive jurisdiction clauses in pre-marriage
contracts, clearly warning the client of the problems, and hope
that future developments in the law can make sense of a nonsensical
situation.
Anglo-Irish cases
With the British government's announcement
last week that the no-fault divorce provisions of the Family Law
Act 1996 are to be repealed, it seems that the English are stuck
with fault based quickie divorce for the foreseeable future. Some
pundits have suggested that Scotland, always jealousy protective
of its own matrimonial jurisdiction and now further emboldened
by devolution and Braveheart, may consider introducing
its own reforms.
So we are faced with a situation
where Irish domiciled parties must wait for four years separation
to divorce at home but can move to England for a year and secure
the right to have an English divorce recognised in Ireland. Little
wonder that the Irish delegation in Brussels almost pulled out,
like the Danes, and accepted the consensus only after securing
concessions such as the five-year review period allowing reconsideration
of participation in the regime (Article 43). From 1 March 2001,
however, I expect there will be a rush of disgruntled Irish spouses
setting up habitual residence on the other side of the Irish Sea,
waiting patiently for a year before starting English divorce proceedings.
I wonder if the left-behind spouses in Ireland can solve the problem
by commencing judicial separation proceedings there?
Practice Notes
All family law practitioners should
review there existing client files (where divorce proceedings
have not yet been commenced) and should also amend their Client
Instructions checklists to highlight any relevant international
issues in the light of the new law. Crucially, establish whether
either of the spouses has nationality, including dual nationality
(or, in the case of the United Kingdom and the Republic of Ireland,
domicile) in any member state of the European Union (except Denmark).
Is one of the parties habitually resident in one of the member
states? If a relevant foreign connection is established the solicitor
must, as a matter of urgency, seek advice from an appropriately
qualified lawyer in the relevant foreign jurisdiction (s).
The Solicitors Family Law Association
International Committee, which I chair, is working on a Guidance
Note for practitioners to assist when Brussels II needs to be
considered. We are also working, in conjunction with Jordan Publishing,
on an International Guide summarizing the matrimonial law in a
number of foreign jurisdictions, including tips on finding a competent
family lawyer. In the absence of any other help for the time being,
family lawyers will need to familiarize themselves with the new
law as best they can from the currently available resources.
It is recommended that every family
lawyer should acquire as soon as possible a copy of Council Regulation
(EC) No 1347/2000 and the Explanatory Report prepared by Dr Alegria
Borras, both published in the Official Journal of the European
Communities. See also two helpful articles published in International
Family Law: - “Jurisdictional and Recognition and Enforcement
Issues in Proceedings Concerning Parental Responsibility under
the Brussels II Convention” by Irish solicitors Geoffrey
Shannon and T.P. Kennedy [2000] IFL 111 and “Brussels II
Regulation: - Impact on Foreign Disputes in Relation to the Main
Suit and Ancillary Relief Proceedings” by Nicholas Mostyn
QC, London barrister [2000] IFL 162. The note by SFLA International
Committee member Andrea Woelke “Practice Checklist to EU
Matrimonial Regulation” in February 2001 Family Law
is also helpful (due for publication next week).
Readers would also be well advised to consider purchasing a copy
of the International Committee’s SFLA International
Aspects of Family Law – a guide to good practice and procedure
published last year at a very affordable price of £45, and
only £35 for SFLA members. Order your copy from SFLA Central
Office, PO Box 302, Orpington, Kent BR6 8QX, England, www.sfla.co.uk.
International Aspects of Family Law is very warmly reviewed
by Stewart Leech, barrister, of Queen Elizabeth Building, Temple,
London in February 2001.
Brussels III, concerning access/contact,
is on the way and a new EU Council Regulation governing service
of legal process throughout the European Union will come into
force on 31 May 2001. The Hague Convention on the Civil Aspects
of International Child Abduction is currently under review. The
British government, in the aftermath of the Kilshaw internet adoption
case, is accelerating plans to implement the Hague Convention
on the Protection of Children and Co-operation in Respect of Intercountry
Adoption which the UK signed in 1994. Ireland, which signed the
Adoption Convention in 1996, may also want to consider full accession.
I hope this increasing internationalisation
of family law means that Irish practitioners will have cause to
visit the High Court of Justice in London more frequently than
in the past. Your British colleagues, particularly those on the
SFLA International Committee, will be pleased to make you welcome.
As for myself, I will be looking for any excuse to return to Dublin.
David Truex is most grateful
to Michael Nicholls of 1 Mitre Court Buildings and David Hodson
and Miranda Green of the Family Law Consortium for sharing their
notes on Brussels II and listening patiently to, though not necessarily
agreeing with, his views.
Appendix
Brussels II
Jurisdiction – Principal Relief
Article 2
Divorce, legal separation and marriage
annulment.
1. In matters relating to divorce,
legal separation or marriage annulments, jurisdiction shall lie
with the courts of the Member State:
(a)in whose territory:
