David Cameron has announced a referendum on the so-called "in or out" of the EU. But first, he said, there will be an attempt to repatriate some powers from the EU. Whilst some of us remain highly supportive of an EU trading bloc and other close connections, there is in places unhappiness about loss of historic, legal and other powers. In this four-part series, I examine areas where family law powers taken by the EU could (and should) pass back to the UK and other member states. Ironically, in three of the areas it does not concern the EU at all but is between member states and non-EU countries.
In my first three pieces, I looked at where the EU was imposing its powers on member states concerning our relationships with non-EU states. This was adversely affecting families and children with UK links but no other EU connection. I argued the EU should restrain itself to dealing only with inter EU family cases.
The fourth does affect EU families. It is the much hated concept of lis pendens, priority to the first party to issue proceedings. It has been hugely condemned since it was imposed upon the English family law profession in March 2000.
In 2013 we have a chance to do something about it. Brussels II is receiving its regular review this year. England must not equivocate. Lis pendens must go. The EU must be left in no doubt about the harm and injustice produced by this very arbitrary forum criteria. European civil servants do not know the adverse consequences in practice, on the ground, in court rooms and negotiating rooms, for international families of this policy.
By way of brief background, in the mid 1990s, the EU was rightly given the task of dealing with the many inter EU family law cases. The freedom of movement and right to work across the EU inevitably meant many more international families. What forum criteria should be used to decide where proceedings concerning a cross border family should take place? The EU is driven by continental European civil law principles such as clarity, certainty and predictability, even if at the cost of flexibility and individual fairness. It looked at the discretionary forum criteria operated in the common law world and decided (understandably) it was too prone to litigation and uncertainty.
Instead the EU adopted a forum criteria found nowhere else in the world between countries with close connections, for example within the US. Their solution was (deceptively) very simple and easy. Provided jurisdiction was established, proceedings take place in the country where they are first issued. It was irrelevant this may be a country with little connection with the couple: they need not have lived there for many decades.
This was divorce. Financial proceedings invariably followed. As financial outcomes on divorce around Europe are so dramatically different, the racing to issue began immediately. One party dashed to issue in a country favourable to them and the other party dashed to the other country. Family lawyers put on their training shoes and changed their law practices across Europe in order to be the winner. (Ignore incidentally the original SFLA Code that in family law there are no winners or losers but only a search for a fair solution! The EU celebrated the winner with mega rewards of the favourable financial outcome.)
Clients were astounded. This was not justice. This had no fairness except the benefit of certainty. Was this what twenty-first century international law had come to?
It produced losers in March 2000 and over the next 13 years.
No one recommends mediation or other dispute resolution in an EU case until they have first issued proceedings to secure jurisdiction; and then what prospect of mediation? The EU has discouraged ADR and other early interventions.
Even worse, care is needed in discussing marital counselling. What if, after one spouse announces keenness to try to improve a faltering marriage, the other party instead runs off and issues a divorce petition just in case it isn't saved? This definitely ends the marriage! It is impossible to guess how many potentially saveable marriages have been destroyed by this EU policy.
No one ever suggests an agreement in any EU case before proceedings, just in case the other side issue instead in their more favourable jurisdiction. Very many lawyers around Europe in these past 13 years have been caught out by writing good practice settlement orientated letters before action only to find the other party has then issued abroad. The EU policy has changed the face of pre-litigation settlement orientated correspondence: there is none any more.
Finally, taking a decision on the best place to issue requires ability to fund lawyers in two jurisdictions, keenness to make the break in the relationship and willingness to use the law for clear tactical benefits. The less wealthy spouse is at a real disadvantage. The spouse without funds, especially needing legal aid, never gets on the starting blocks in this litigation race. The spouse who doesn't want to issue immediately and wants to give the other party a chance to change their ways and come back to the relationship is simply left to suffer the consequences of the adverse financial outcome in the other jurisdiction.
It is almost impossible to conceive a law creating so many deserving losers and undeserving winners, destroying saveable family life and simultaneously setting back family law practice several decades.
Belatedly the EU has recognised some of these practical problems of the race to issue. They believed that the introduction of applicable law would be the solution. It was not nor will be.
Lis pendens must go. But what replacement? The EU seems to have no other solution. So we practitioners must find solutions. Civil law in Europe will simply not accept the discretionary forum criteria as exists with non-EU countries.
The most obvious solution is a hierarchy of jurisdiction criteria. At the moment in Brussels II, there are seven different jurisdiction criteria (Art 3) but any can be used. They overlap considerably and their meaning can be uncertain with some contradictory High Court decisions. In a hierarchy of jurisdiction criteria, the country with jurisdiction on the highest criteria available takes the proceedings. It would be impossible for more than one country to have proceedings. Probably the first would be the habitual residence of both throughout the marriage. Next might be habitual residence over 10 years. And so the hierarchy would run. After several stages ordinary residence of both parties might be more powerful than the habitual residence of just one party. At a particular stage, joint nationality or joint domicile would be introduced. Towards the bottom of the hierarchy would be simple residence of only one spouse or sole domicile or sole nationality of one spouse, so that there was always jurisdiction in one EU country.
I was told by an EU official about five years ago that they were sympathetic but did not proceed as they thought it would be impossible to reach a consensus on the hierarchy. This explanation loses credibility as other EU legislation has a hierarchy of jurisdiction such as Art 8 EU Enhanced Co-operation Regulation, EU Maintenance Regulation (Art 4 agreements trumps Arts 5, 6, and 7) and even Brussels II for children is a form of cascading jurisdiction in Arts 8 -14.
This hierarchy, cascading, of jurisdiction would immediately end the race to issue. The country dealing with the proceedings could apply its own law, thus overcoming issues with applicable law across Europe. It would create certainty and clarity for families moving around Europe but at the same time overcome the rush to break up a marriage by issuing divorce proceedings in the more favourable country.
If the EU adamantly refuses to give way on the first to issue principle, it should at the very least introduce the power to transfer proceedings to the court with the closer connection. The absence of this power looks perverse. It exists in relation to children proceedings in Brussels II itself (Art 15) where the proceedings issued in one country can be transferred to another country based on the criteria of "better placed" to hear case and in the best interests of the child. There is no good reason why this cannot be introduced in respect of divorce or financial matters.
Many EU families have suffered badly over these past 13 years by a decision taken in Brussels to deal with the considerable number of forum disputes in family law cases. There was no track record of lis pendens. Although some of us as practitioners warned in advance, we were ignored. The fact that we were proven correct gives no smugness; only sadness.
This is not so much a power to be repatriated but a power to be repaired and quickly in this review process. The damage has been to many international families, primarily the more vulnerable party being often the woman. Family law practice has also been damaged, creating a culture of ignoring pre-litigation attempts to settle, reach agreement or use ADR or explore saving marriages.
Priority through first to issue was the wrong priority. It must end.
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 chair of the Family Law Review Group of the Centre for Social Justice.
David is the author of a new major reference work, The International Family Law Practice as well as A Practical Guide to International Family Law (Jordan Publishing, 2008). He can be contacted on firstname.lastname@example.org.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.