That is what Arts 3 and 8 of Brussels IIa are designed to effect. Looking also to the Maintenance Regulation, it surely is beyond argument that there should be uniform rules of jurisdiction on where a maintenance creditor can bring an action and where a maintenance creditor can be sued. Brussels Ia applies generally in civil and commercial matters but will be familiar to family lawyers because it establishes uniform rules for where a defendant can be sued, including rules on matters concerning real property of which TOLATA proceedings are the classic example.
We will show you in more detail in Episode II why the precise content of these Regulations demonstrate wisdom in their formulation. For the moment, we confine ourselves to highlighting Art 3 of Brussels IIa which sets out the uniform rules for divorce. The objective of that article, as explained in the Borras Report (OJ 1998 C 221/27, 16 July 1998) is to establish a genuine connection between a person and the Member State in which the court’s jurisdiction is invoked. Article 3.1(a) contains a variety of links based on habitual residence, while Art 3.1(b) bases jurisdiction on the common nationality of both spouses or, in the case of the UK and Ireland, common domicile. This represents a fine compromise between the concept of habitual residence traditionally beloved of civil lawyers outre Manche and that of domicile equally beloved of common lawyers within the UK. As to habitual residence, the autonomous concept to be applied (as the case law of England and Wales demonstrates) is that of the individual’s centre of interests, taking into account all relevant factors including intention.
This ‘qualitative’ test is derived from the seminal judgment of the French Cour de Cassation in Moore v McLean
(iv 1ere, 14 December 2005), in turn drawing on the definition of habitual residence in Regulations applying in other fields involving social and family mobility such as social security entitlement. The qualitative centre of interests test is far better suited to the realities of modern social mobility than the day-counting ‘quantitative’ test of habitual residence applied in earlier English domestic family law. The modern European family may have several physical residences in different Member States and what matters for fixing jurisdiction is identifying the centre of interests of the individual who comes before the court in the context of divorce. Take also the test of habitual residence for a child under Art 8 of Brussels IIa. In accordance with modern realities this focusses on the degree of integration by a child in a social and family environment, as articulated by the Court of Justice of the European Union in Re A (Area of Freedom, Security and Justice)  2 FLR 1
and Mercredi v Chaffe  1 FLR 1293
. We also approve of the simplicity of the lis pendens rule in Art 19, which accords priority to the court first seised. We will explain why in Episode II.
No doubt our learned (sic) opponents will draw attention to the seeming complexities of the Regulations and the case law which they have generated. We will address this in the next Episode, but for the moment we are concerned with the big picture. Under the constitution of the EU, the court of any Member State is able to refer to the Court of Justice of the European Union a question concerning the interpretation of a provision of a Regulation: see Art 13(b) of the Treaty on European Union 1992 and Art 267 of the TFEU. This is an invaluable source of clarification in legal interpretation. The procedure is simple and does not even require domestic remedies to be exhausted, as illustrated by the recent reference by Roberts J in MS v PS
of questions concerning the route for enforcement of orders under the Maintenance Regulation.
Brexit supporters should desist from the bland generality of their rhetoric and contemplate with some precision (hitherto woefully absent) what would be the family law consequences of exit. Under Art 50 of TEU a notice of intention to withdraw will automatically result in cessation of EU membership within 2 years, unless a withdrawal agreement sets a different date or Member States unanimously agree to an extension. What would happen to our laws after the withdrawal date, when EC Regulations cease to operate by direct effect? In relation to jurisdictional rules, would the UK simply be content to revert without further discussion to old provisions of domestic law such as the Domicile and Matrimonial Proceedings Act 1973 and the Family Law Act 1986 which were themselves significantly amended with effect from 2001 to take account of European harmonisation by Brussels IIa? Would it be a truth universally accepted that we have learned nothing from the content of jurisdiction rules in the Regulations which we have now applied for many years? If not, the usual process of law reform would have to be followed: lengthy law reform consultations which could eventually lead to the enactment of provisions identical to or not far removed from those of the Regulations.
We must all contemplate the practical consequences of a post Brexit landscape in international family law. In relation to jurisdictional disputes arising with the remaining Member States of the EU, we would apply our domestic jurisdictional rules and each Member State would apply the EC Regulations. Where those rules differ in substance, could not this lead to unseemly races to judgment and further to the revival of that spectre well known to the conflict of laws, the ‘limping marriage’. Many marriages are sufficiently challenged without the added problem of inconsistent judgments – the avoidance of which is central to EU law.
Consider also the position between England and Scotland. If Brexit won the day Scotland may well conduct its own further referendum to obtain political independence from the UK and subsequently its own membership of the EU. Adieu
then to a provision such as para 8 of Sch 1 to the Domicile and Matrimonial Proceedings Act 1973? A suivre.
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