David Hodson on International Family Law: EU Justice Ministers approve European divorce enhanced cooperation

06 DEC 2010

David HodsonOn Friday 4 December 2010, the EU Justice Ministers approved a draft EU Council Regulation about which country's laws should be applied on divorce and legal separation, the so-called applicable law regimes. The United Kingdom is specifically not a party. It is the first "enhanced cooperation" in the history of the European Union. It allows 14 member states to go it alone, without the support of all EU member states. It creates harmonised rules for determining on the divorce of an international couple which country's laws would be applied, rather than necessarily the local law of the country where the divorce occurs. It will be approved by the EU Parliament later this month, probably 14 December. At the moment it has the rather bureaucratic title of Council Regulation 2010/0067(CNS) - COM(2010)0105, although this will be tidied up when passed

The EU had failed to gain unanimity for a draft regulation (Rome III) imposing so-called applicable law on all EU member states because of opposition from countries such as the UK and others who only apply their own local law and did not want to apply the law of other countries. Instead 14 countries which already operate the system of applicable law asked the EU to adopt harmonisation rules similar to Rome III.

For those of us in England dealing regularly with international families, it is excellent news. Across the many countries in continental Europe which routinely apply the law of other countries, the rules on when and how to do so were confusing, contradictory and uncertain. This new EU measure provides harmony, certainty and clarity. This Regulation is not just for those within those signatory countries but for those of us in England advising on European cross-border forum issues, of which there are now many cases.

However there are some real concerns about the detail of the Regulation.

It does not simply require a signatory EU country to apply the law of other EU countries but to apply, where applicable under the Regulation, the laws of all countries across the world even if not signatory EU countries and even if entirely outside the EU. It is a so-called universal regulation with universal application (Art 2 although numbering may change when it is finally passed by the EU Parliament). So France may apply Algerian law, Portugal apply Chinese law and Germany apply the law of Kazakhstan, no doubt with Borat as an expert witness!  This universality raises public policy and human rights issues. There are some countries around the world where laws on divorce are directly gender discriminatory, clearly favourable towards nationals, censorious on sexual misdemeanours but not on violence, and other issues. Will the EU signatories to this enhanced cooperation apply these foreign laws as they would be applied in the other country, or will they sieve them through their own local perceptions of justice, equality and human rights? Of course it is likely to be the latter, however this will only confirm English perceptions that applicable law is very often sacrificed to local perceptions under national law.

The saving provisions in Art 5 that requires use of local law if the law being applied has any unequal access to divorce or in Art 7 incompatibility with public policy may be rarely used, alternatively drive the proverbial voiture a chevaux.

The Regulation allows parties to choose in a marital agreement the law which will be applied (Art 3). To avoid so-called exotic choices, this must be in one of four categories namely:

1.  the law of the state of the spouses' habitual residence at the time of the agreement;
2.  the law of the state of the spouses' last habitual residence if one of them still lives in the state at the time of the agreement;
3.  the law of the state of nationality of either of them;
4.  the law of the forum.

This is commendable in supporting personal autonomy for those couples from applicable law countries. The agreement has to be in writing and comply with any additional formal requirements of the state in which it was concluded, or of either state if they are habitually resident in separate states (Art 3b). (Predictably for continental European agreements, independent legal advice is not required!)

Crucially, and the heart of this Regulation if there is no marital agreement, divorce and legal separation shall be subject not necessarily to local law but to the hierarchy of criteria in the following order as at the time the divorce court is seized (Art 4):

1.  the law of the state where the spouses are habitually resident; otherwise
2.  the law of the state where they were last habitually resident provided the residency did not end more than a year before and one still resides in that state; otherwise
3.  the law of the state where they are both joint nationals; otherwise
4.  the law of the state where the court is seized, ie local law.

This is of considerable importance across the EU including to us in England. Although we will maintain our exercise of local, English law in all cases before the English courts, if we have an Anglo French case with the parties now having separate residencies in both countries and both England and France has jurisdiction under Brussels II, yet the parties are both Italian nationals, it may well be that France would apply Italian law. This possibility of a third country's law having to be considered may therefore affect our recommendations to clients on the best forum. In England we will need to work through this hierarchy in any EU forum dispute involving one of the signatory countries to the Regulation. Suddenly our forum considerations, already frantically urgent because of the first to issue principle, have now become much more complicated with this additional layer.

Curiously the original commentary to the Regulation says that the hierarchy, above, will mean that in the "vast majority" of cases, local law will be applied. It says the cases in which a foreign law is applicable will be "very few in number". But for these very few cases, the European Union has devoted a vast and disproportionate amount of time, energy, and political and legal goodwill in trying to force their own agenda on all countries across the European Union to adopt applicable law, most fundamentally the United Kingdom. The European Union's own test of proportionality would therefore fail these attempts, as the North Committee has already found.

However do we still have to worry about the rush to court under Brussels II? Not according to the EU press release. They say these new rules will prevent a rush to court. This is as likely as transparency and democracy in selecting World Cup hosts!  The reason is that the Regulation relates only to divorce and legal separation. Article 1 (1a) makes it clear that the Regulation does not apply to property consequences of marriage and maintenance obligations even if they arise as a preliminary question within the context of the divorce. In the English context this would be presumably as an ancillary question i.e. ancillary relief. It also does not apply to capacity, recognition of marriage, annulment or matters of parental responsibility, which in the EU context is significantly wider than the technical meaning under the Children Act 1989.

This is of paramount importance within England where the divorce is the only foundation to deal with maintenance and property consequences of marriage breakdown. We have no freestanding applications. We apply local, English law. Whoever gets the divorce first secures the court to deal with the financial aspects. So the race is still on for us. The EU is kidding itself if it believes continental European family lawyers have confidence that another country will apply their own laws identically to the way they are applied at home. The application of local law in the courts of the local country are often very differently applied in other countries.

If the European Union thinks that this Regulation will end the rush to court, it is showing that it is still completely out of step with the family law professions across Europe who will still as ever be tactically choosing the best forum, then rushing to court to secure the best country and outcome for their client. The real remedy which the EU adamantly refuses to countenance would have been a hierarchy of jurisdiction, perhaps based on the hierarchy in the Regulation. This would have ended the racing. But the European Union was positive that it would not change the jurisdictional element. This is a huge pity.

A partial remedy would have been the power to transfer divorce proceedings to the more suitable, better connected country, within parameters and without unfettered discretion. The EU is understood to be sympathetic to adopting this in civil disputes, Rome II. It is available in children disputes in Brussels II bis. But not for divorce. Not for finance. Yet again it appears to be an agenda driven by the EU, not recognising pragmatic solutions.

There will be a fuller note when the Resolution has been finalised by the EU Parliament.

In conclusion, this draft Regulation is a good development, a vital development for those countries presently adopting applicable law, important for those of us engaging in forum considerations for our clients but not the answer to the rush to court. The European Union still needs to grapple with the very anti-marriage and anti-resolution impact of Brussels II, lis pendens.

The regulation is likely to come into force in June 2012.

David Hodson is a Consultant at The International Family Law Group. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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