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family law, brexit, Brussels IIa, divorce, jurisdiction, habitual residence
For several years a small group of leading and junior counsel, solicitors and academics have been meeting to discuss European family law issues, particularly the EU maintenance regulation and what should be the divorce jurisdiction after we leave the EU.
Most of the discussions of the impact of leaving the EU on family law affects those lawyers undertaking cases with an international element. However there is one fundamental piece of EU family law which affects most domestic family lawyers and domestic family law cases. It is the law relating to the jurisdiction for divorce proceedings. Perhaps forgotten by many family lawyers, it is found in EU law, specifically the Brussels Regulation known as Brussels IIa.
Even though in the vast majority of cases the default position of joint habitual residence is used, nevertheless it is based on EU law. When the UK leaves the EU, new law will be needed. What should it be? On what basis should couples be able to engage the jurisdiction of the UK courts in order to divorce (and linked with that, for now, are their financial applications).
This has been discussed by a small group of lawyers with significant international practices who have been meeting two or three times a year over the past few years to discuss and share informally about international matters, primarily as they pertain to the EU Maintenance Regulation. The group met in early February 2017. The group considers that there are three different scenarios for the possible ways forward. This note sets out those scenarios and the group’s proposals which they commend to the profession and to government.
First, if the decision is that the whole of the Brussels Regulation should be incorporated into national law and, fundamentally, that we should retain complete reciprocity with all other EU Member States (with the decisions of the CJEU remaining binding upon us), then divorce jurisdiction would continue as at present, as found in the Brussels IIa. Any other law would be illogical if the EU law were to be reciprocated within national law. The lis pendens provisions (the ‘race to issue’) would remain.
Second, an alternative may be for the Brussels Regulation to be incorporated within national law but with no reciprocity with the other EU Member States. It was recognised by the group that this has many problems. CJEU judgements would not be binding on our country. There would be a risk that changes to EU law would not automatically occur in this country. But particularly the lis pendens provisions would not apply on a reciprocal basis giving rise to arguments about which forum as between the UK and other EU Member States is appropriate, a complete antithesis to the EU approach under Brussels IIa. The group did not pursue consideration of divorce jurisdiction in these circumstances.
Third, another option is for no part of the Brussels Regulation to remain in English national law once we leave the EU. Therefore, we would need a new divorce jurisdiction law. Although we could simply adopt Art 3 of Brussels IIa, there is little point if there is no more reciprocity with the EU. We would lose the lis pendens provisions and return to a complete forum conveniens system. Accordingly, the group looked at what should then be the new divorce jurisdiction law. However, the group was also concerned to have as relatively little change as possible given Brussels IIa has been settled law over the past 15 years.
The proposal for the grounds which should be available to found divorce jurisdiction is as follows:
joint habitual residence
habitual residence of the respondent
habitual residence of the petitioner for six months before and as at the date of the petition
sole domicile of either party
sole nationality of either party and a greater connection with England and Wales than any other country within the UK
Joint habitual residence is the default position for the vast majority of divorces at the present. It should continue. It would be habitual residence as at the date of the petition. As a matter of law, a person can have only one habitual residence at any one time.
Habitual residence of the respondent is also the present law. It is found in other laws such as the EU Maintenance Regulation. It is the country in which the respondent has his or her habitual residence and therefore indicates a strong connecting factor.
Habitual residence of the petitioner for six months before and at the date of the petition. The group felt that there should be a higher burden of ‘connectedness’ on the petitioner than the respondent. It would discourage some blatant forum shopping and is in keeping with the present jurisdiction law in Brussels IIa which gives a substantially higher burden of ‘connectedness’ for the petitioner than the respondent. The group felt that it should be habitual residence over the entire six months rather than habitual residence on the day of issuing and simple residence for a period of time (the latter being the current law). This would overcome the Marinos case law complications. Longer than six months could cause conflicts with other laws and might be considered unreasonable. There are other common law countries which follow this pattern.
Sole domicile is the present law if no other EU Member State has jurisdiction and it was the law before Brussels IIa. The group feels it should always be an option, rather than an option only available if the other options do not apply.
Sole nationality and a greater connection with England and Wales than any other UK country. The group looked at divorce jurisdiction across many common law countries. A good number have either only nationality or nationality and domicile as connecting factors. There will be some people who are only nationals of a country and not domiciled there. Nationality is undoubtedly a connecting factor. It is also much easier to prove than domicile. As nationality is ‘UK’ rather than ‘England and Wales’, it would have to be with a closer connection to England and Wales than any other country within the UK.
The group looked at the possibility of having some form of agreement as to divorce jurisdiction but decided that at present it would be far too problematical.
Another possible approach would be to have a hierarchy of jurisdiction, and this is favoured by a number of lawyers and others. But the group felt that there would not be sufficient time for a consensus to be reached before the law had to be agreed and introduced for the time of the EU departure. However, the group would hope that discussion on a hierarchy of jurisdiction could continue.
The group commends this for further discussion and in particular for consideration by those planning the future of our legislation.