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.
On midnight Friday 17 June 2011, family lawyers unable to sleep because of anxiety about their cases or their practices did not realise that a new law was being introduced into England and Wales, and the rest of the EU, which affected all cases with non-EU countries. Possibly no practising lawyer was aware of the change.
Of course we knew that on 18 June 2011 the EU Maintenance Regulation was being introduced. We knew it replaced Brussels I, the Judgement Regulation, in providing a family focused law instead of general commercial provisions. We knew it gave priority to agreements even if without legal advice or disclosure. We knew it gave priority to maintenance applications already made elsewhere in the EU. We knew it had a convoluted process for enforcement where the maintenance had been made in a non-applicable law country. We knew it provided for automatic recognition of maintenance obligations around Europe. We knew there were differences around Europe with the definition of "maintenance", interpreted as "needs" in England and Wales.
We also knew that, despite its many complexities and unsatisfactory elements, it was very important for an EU justice system. A person entitled to maintenance, eg alimony or child support or a needs-based lump sum, should be able to have it automatically recognised and enforced easily and simply against a paying party in another EU country. It applied between EU countries.
What none of us, lawyers in practice as distinct from the civil servants, knew was the EU took this opportunity to impose on all EU member states a restriction on our jurisdiction to deal with maintenance cases even if no other EU country was involved. It said there was no longer jurisdiction for maintenance on sole domicile (or sole nationality, the continental European preference to domicile).
Article 3 says that jurisdiction for maintenance obligations in any EU country lies in four situations namely where either the paying party or the receiving party is habitually resident or ancillary to divorce proceedings ("concerning status") or children proceedings ("concerning parental responsibility"). Fundamentally in the latter two, it cannot be based on sole nationality or sole domicile. Crucially this is not limited to jurisdiction between two EU countries, perhaps competing to deal with a divorce as with Brussels II. The EU intends that this applies to national laws including with non-EU countries.
This has created an incredibly uneven playing field between us and non-EU countries. Whereas countries such as the US, Canada, Australia and many other non-EU countries with which we have a lot of international family law traffic have jurisdiction based on sole domicile or nationality and can still entertain maintenance proceedings, England and other EU countries can no longer do so. The English domiciled spouse with no habitual residence in England living abroad with a non-English domiciled spouse cannot bring maintenance proceedings here. It could be where they are habitually resident. But sometimes neither wants family law proceedings in their country of habitual residence and each seeks to have them brought in their respective home countries. If so, England no longer has jurisdiction. The country of the domicile or nationality of the other spouse has a clear run. The English-domiciled spouse has been totally emasculated by the EU preventing England having maintenance jurisdiction.
It must be remembered that maintenance in this context does not just mean periodical payments, spousal or child. It means "needs". England is a mixed sharing and needs-based jurisdiction. Sharing will remain. But needs-based claims for more than 50% of the marital assets will no longer be available here. We are closed for business to English domiciliares.
This applies on divorce and dissolution of civil partnership. But it is wider and applies to all family law financial claims.
England no longer has Sch 1 CA 1989 jurisdiction for the financial needs of the child if the only connection is sole domicile even if the other country which could deal with the financial arrangements for the child is proceeding itself on sole domicile or sole nationality.
It applies to Part III MPFA 1984, financial provision after a foreign divorce. The 1984 legislation specifically stated jurisdiction was based on 12 months residence or sole domicile. Not anymore. If a needs-based claim, as most are, then sole domicile is no longer available. This has particular hardship where there is an English-based pension and the couple have divorced abroad, perhaps entirely by agreement, and seek a pension sharing order of the English pension and use Part III. Often the only jurisdiction is one party's continuing link of sole domicile. But unless the pension arrangement is sharing and not needs, England now has no jurisdiction. Several cases have already suffered this fate with no opportunity to share English pensions, despite agreements.
Of course in most cases, one or both parties are habitually resident in England and Wales. If any connections with another EU country, sole domicile is not available under Brussels II for divorce.
But there is no good reason for the EU to tell EU member states what jurisdiction it should, or should not, have with non-EU countries. England has had sole domicile as a jurisdictional maintenance basis for a very long time. Fundamentally English domiciled parties in a non EU country should be able to look to England to deal with their needs-based family law claims.
I appreciate our civil servants say they did their best in negotiations before the legislation was finalised and believe they got the best deal possible for England. This is not criticised although I do believe there should have been far greater publicity of this in advance of the legislation.
But we do not need this restriction from the EU on our family law jurisdiction powers. It has no warranted justification. It creates inequality between us and other non-EU countries in forum issues. It directly disadvantages English domiciled parties. It creates real problems for many very deserving people finding themselves without access to justice for their family law needs claims in their country of domicile.
This is a very easy repatriation. It needs only a couple of words. Article 3 of the Maintenance Regulation should say it only applies within the EU. Few will argue. It is then logical and consistent with other EU legislation. For Mr Cameron looking at repatriations of unwarranted EU powers, here is a very easy, sensible and thoroughly necessary reform. It should not be delayed.
David Hodson is a Partner at The International Family Law Group LLP. 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 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 email@example.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.