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11 JUN 2010

Hayley Trim's Analysis: Beyond Radmacher

Beyond Radmacher

Hayley Trim, Family Law PSLWhile we (still) wait for the judgment of the Supreme Court in Radmacher v Granatino Lord Justice Thorpe's thought-provoking Keynote Speech to the Jordans Family Property and Finance Conference on 9 June serves as a timely reminder of the wider issues of international and particularly European family law facing us.

As a common law jurisdiction with an entrenched lex fori tradition, the UK holds a minority position in Europe. While, as David Hodson pointed out in his recent column, numerous EU civil law jurisdictions have felt able to proceed with an "enhanced co-operation" to apply each other's law in appropriate international divorce cases, the UK has avoided entering treaty negotiations on the harmonisation of divorce laws since opting out of Rome III.

The differences between financial awards on divorce under civil law jurisdictions and English law are notorious, gaining London the reputation of "divorce capital of the world". The current EU rules on jurisdiction have resulted in the race to be first in time to issue divorce proceedings, and in many cases this can give rise to arbitrariness and perceived injustice given the potential difference in financial outcome. One aspect of this is the English treatment of the pre-nup as one circumstance of the case rather than enforceable per se.

If the Supreme Court upholds the decision in Radmacher and adds weight to the Court of Appeal's expressions of support for a presumptively dispositive approach to pre-nups, this is just one small step in the European direction. A substantive law change is ultimately a matter for Parliament as both the Court of Appeal and Privy Council have pointed out. But recognising individual autonomy to contract is not to be equated to a matrimonial property regime, and it will not impact on the majority of couples in this country.

Opinions on this issue are diverse. Thorpe LJ submitted that it is the responsibility of the UK to propose a solution to bring ourselves more in line with our European neighbours rather than removing ourselves from the debate at the risk of increasing isolation. Broad domestic law reform seems unlikely in the near future. An applicable law doctrine has traditionally been rejected by English lawyers. It brings with it a demand for expensive foreign law experts and the risk of "hired guns". Thorpe LJ considered that the answer may lie in the option to transfer ancillary relief cases to the more appropriate jurisdiction, as an alternative to applying foreign law.

It is arguable that the court has power under the inherent jurisdiction to transfer ancillary relief proceedings to a more convenient jurisdiction where there has been an English divorce. This has been termed "bi-furcation". Thorpe LJ referred to the first instance decisions of Holman J and Connell J in W v W (Financial Relief: Appropriate Forum) [1997] 1 FLR 257, D v P (Forum Conveniens) [1998] 2 FLR 25, and Krenge v Krenge [1999] 1 FLR 969 and he pointed to Moore v Moore [2007] 2 FLR 339 and the recent decision in Agbaje v Agbaje [2010] UKSC 13 as support for the proposition that there properly can be judicial involvement in two jurisdictions.

With increased judicial collaboration, transfer in appropriate cases could be more readily facilitated.  Perhaps a provision akin to Article 15 Brussels II Revised on the transfer of children matters in appropriate cases should apply to ancillary relief matters? Food for thought...

Hayley Trim is a Family Law PSL at Jordan Publishing and was formerly a family solicitor practising in London.

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