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At 4 AM on Friday 9 December 2011, David Cameron found himself manoeuvred by the French into a position where in national interests a tactical withdrawal was the only way forward, thereby vetoing commitment to an EU fiscal and budgetary union treaty. The morning after the night before the European landscape looks different, although only time will tell the real significance of what happened: how much was jingoistic and opportunistic hype and posturing and what was really truly historic. For those of us who in 1973 passionately supported the UK entry into the EU, as it now is, the future might be quite unexpected. As the UK sits at the table on our own and watches our 26 European friends together at their large fiscal union table, there is inevitable conjecture about other possible implications. So the family law unthinkable becomes just possibly (hypothetically?) thinkable. How would it be if we were no longer sitting at the EU family law table? This brief note ponders the gains and losses
Brussels II divorce: identical jurisdiction across Europe and automatic recognition of divorce orders is commendable although could be achieved in some other ways. The first to issue basis of jurisdiction is thoroughly destructive of family life, reconciliation, negotiation, mediation and much more, and its abandonment would be cause for much celebration
Brussels II children: recognition and simplified enforcement of children orders is very commendable although not significantly used. The 1996 Hague Convention, in force April 2012, will provide similar provisions although not as complete
Brussels II child abduction: trumping is relatively rarely used. The Art 13 (b) defence is unlikely to be effective across Europe anyway. Arguably we lead Europe in our diligence to child abduction and our complaint is those EU countries which do not comply
Maintenance Regulation: the recognition and simplified enforcement of maintenance orders is commendable but should appear later in 2012 in the 2007 Hague Maintenance Convention. The resolution of financial matters on relationship breakdown will be increasingly divided between countries dealing with maintenance (as in needs) and those dealing with property sharing, in part because of first to issue. This may be familiar and acceptable in civil law jurisdictions. However it is thoroughly alien in England and will cause significant delays, dissatisfaction, costs and uncertainty about outcomes. Few in England would regret its early demise
EU Service Regulation: commendable, practical legislation but there is a 1965 Hague Service Convention which is good enough for the rest of the world
EU Legal Aid Regulation: again, commendable and practical but there is the 1977 Strasbourg Legal Aid Agreement to which many countries outside of Europe commit
EU Taking of Evidence Regulation: rarely required within family law and there is the 1970 Hague Evidence Convention.
EU Enhanced Co-operation Applicable Law Regulation: the UK is not a party so arguably irrelevant. But the EU is adamant it wants to impose applicable law across the EU family law jurisdictions and the UK has constantly and rightly opposed. There is now the 2007 Hague Applicable Law Protocol which can serve those countries worldwide with applicable law allowing other jurisdictions their own parallel legislation and procedures.
EU Mediation Directive: this is commendable but much is happening anyway. The UK is one of the leading countries in the world encouraging the use of ADR. Next month, January 2012, a conference at The Hague is anticipated to approve good practice guidelines for the whole world on mediation in child abduction. ADR needs to reach across the world, and not just Europe.
There is much good which has come from EU legislation, particularly on practical aspects rather than substantive law. Recognition, simplified enforcement and identical jurisdiction is beneficial. However the priority of the arbitrariness of the first to issue, the separation of resolving maintenance/needs in one country and property sharing in another and the continued fight against the imposition of applicable law are good reasons at this momentous time in European economic history to make us think the European unthinkable. What would it look like if we no longer had the EU family law legislation?
I suggest two elements would come to the fore
The EU has a number of treaties and conventions with non-EU states and groups of countries. We are so European that we have to be joined in many ways. There is little doubt that if the unthinkable occurred, we would and could latch on to EU family law provisions in a number of ways. Not doing so is unthinkable for the sake of international families and their children.
But secondly, and unlike the UK sitting alone in Brussels at its fiscal union table, family law has another restaurant, along the road in The Hague. We will there decidedly not be alone at our table. We will be surrounded by our very many other friends from around the world, not just the EU. Crucially we will be with those with whom we share many common historic and other ties: of common law, of discretion, of judicial systems and of cultural expectations. Moreover the other restaurant in The Hague already has a very good menu of legislation in place, operating well and with which we are familiar. (And does not cause the indigestion sometimes experienced from the Brussels menu!)
This is a brief opinion piece. Very few advocate leaving the EU as a consequence of the fallout over fiscal and budgetary union. Nevertheless there are some elements of EU family law legislation with which some of us would most undoubtedly want to say Non and exercise a veto if possible. There is already a family of countries with commendable legislation operating from The Hague. Perhaps the fallout from the early hours after a late-night in Brussels is that the UK, specifically English family law, should be looking more towards The Hague and recommitting our energies and efforts to support Hague legislation worldwide. This is most definitely thinkable and absolutely in the best interests of international families and their children.
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.