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:
