Family Law

The IAML European Chapter has just held its annual meeting in Strasbourg. Apart from European Fellows and lawyer guests, there were many from America, Asia and Australia, perhaps indicative of the influence of European family law across the global family law community. There were an excellent series of lectures with ensuing discussion, drawing dramatic attention to several key aspects. These are just personal headlines:

1 - The EU Maintenance Regulation is effective on 18 June 2011. The simplistic analysis is that it replaces Brussels I being specific just to family law. Predictably, much too simplistic! The jurisdictional arrangements are similar but in some cases will be crucially different in practice. There is extended choice of law provisions. It covers child support. Fundamentally, advice about where proceedings should take place will be more complicated, which does really mean complicated! Given the stated commitment of the EU in family matters is to produce certainty, clarity and predictability, the Regulation will not do so. There will be much cross-border litigation until certainty and clarity prevails. The EU could have produced a much better instrument.

2 - At least the UK has had the opportunity of not opting into the applicable law elements of the Regulation. These are incredibly complicated, even on the admission of civil-law family lawyer specialists. In that English lawyers will have cases concerning the applicable law aspects of maintenance, we are not immune and our cases will suffer with delays and costs because of these complications.

3 - One fundamental element of the Maintenance Regulation is the jurisdictional priority given to agreements in respect of maintenance. This includes premarital and marital and stand-alone maintenance agreements. Predictably in continental European dominated law, such agreements do not need separate advice or disclosure, so therefore much wider than Radmacher style. So a court seized with the divorce and ancillary relief matters has to decline dealing with maintenance, interpreted across much of Europe as "needs", if there is any agreement dealing with maintenance or prior maintenance proceedings. The inevitable consequence is that there will now be many more split trials across Europe with maintenance, "needs", dealt with in one country and other financial aspects, such as sharing and compensation in English terms, being dealt with in another country. For most English practitioners this is the worst possible recipe for unfair, unjust, highly expensive and slow outcomes. It is inherent within the EU design of the Regulation. Continental European lawyers are used to this split scenario in resolving ancillary financial issues and are less concerned.

4 - The recently published draft EU Property Regimes Regulation also highlights the EU acknowledgement that divorce and property division, "non-needs", may be dealt with in one court in one country and maintenance, needs, in another country. Yet there is no power to transfer and no practice of doing so. This will produce particular hardship in England where we are used to looking at the totality of the assets with many financial settlements containing mixed elements of needs and sharing.

5 - Some EU countries have a very different interpretation of the residual basis of divorce jurisdiction, if no other EU member state has jurisdiction under Art 3. The English interpretation is that in those circumstances one relies on the residual basis which in the UK and Republic of Ireland is sole domicile and in much of the rest of Europe is sole nationality. A Swedish High Court decision has gone in a very different direction, and France would look at its Civil Code rather than the conventional residual basis. One of the few benefits of Brussels II was uniformity of divorce jurisdiction across Europe. It would seem that, 10 years on, even this is not happening with greater uncertainty for international families.

6 - The child abduction trumping provisions of Art 11 is not working across Europe. It is not often exercised. When utilised, there is little cross-border support or unanimity of the priority to the orders of the state from which the child was originally abducted. There are long, excessive delays in return orders either under the trumping provisions or generally after an abduction.

7 - There was a need for much greater centralised policing from the Hague in respect of the worst non-compliances and abuses of the Hague Child Abduction Convention. This includes the operation - or inoperation - by some Central Authorities, very great delays in some countries, giving too great regard to the welfare test instead of simply returning the child, and many other systemic failings. These cannot be tackled on an individual case by case basis. It is inappropriate for one country to find itself complaining continually about one or more other countries. It must be dealt with centrally, which probably means from the Hague authorities.

8 - In a similar way, there was a perception that greater policing is needed in respect of the Brussels II divorce jurisdiction issues. Some countries take five years or more to adjudicate whether it has jurisdiction. There was continued unhappiness about the lack of any transfer powers. As with child abduction work, there was feeling that it was pointless loading more and more complex legislation and cross-border law on practitioners without ensuring that what presently exists is operating properly and efficiently. There was also a feeling that the EU policymakers have given no regard to the concerns of specialist family law practitioners and therefore the operation in practice of their laws. Does the dogma and self congratulatory kudos of the introduction of cross-border laws end when it has passed through the European Parliament?

It was a very successful conference. There was an exceptionally high level of discussion about the very real practical problems facing lawyers and their clients in the international dimensional. We have understood and dealt with the Brussels II Regulation, Brussels I, service and other procedural Regulations and will take on board the Mediation Directive in June. However Brussels simply cannot continue its phenomenal pace of introducing complex, culturally contradictory and litigation contentious new legislation, even apart from the issues of applicable law, without being satisfied that practitioners can operate it as intended and fairly and justly.

There are now too many cross-border cases across Europe with massive delays, disproportionate costs and relatively esoteric legal arguments arising from the Brussels legislation. The EU is no longer serving its international family law community (and their children) by the way it is introducing its legislation.

Time for the pause button?

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.