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Brussels Beware

A paper delivered at the National Conference of the Family Lawyers’ Association of Ireland

Dublin, Saturday 27 January 2001


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!


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, 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.


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:

  • the spouses are habitually resident, or
  • the spouses were last habitually resident, in so far as one of them resides there, or
  • the respondent is habitually resident, or
  • in the event of a joint application, either of the spouses is habitually resident, or
  • the applicant is habitually resident if he or she resides there for at least a year immediately before the application was made, or
  • the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his “domicile” there;

(b)of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the “domicile” of both spouses

2. For the purpose of this Regulation, “domicile” shall have the same meaning as it has under the legal system of the United Kingdom and Ireland.

David Truex
27 January 2001

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