The common law system of precedent relies essentially on inductive (‘bottom(s) up’ in common parlance) reasoning. We family lawyers – and our bemused clients – are all too aware of the lack of principles articulated in a statute such as the Matrimonial Causes Act 1973. The House of Lords in Miller v Miller; McFarlane v McFarlane  UKHL 24,  1 FLR 1186
bravely attempted to articulate strands/rationales (now since Charman v Charman (No 4)  EWCA Civ 503,  1 FLR 1246
usually expressed as principles) to make up for the lack of clear principle (minor children’s welfare excepted). The reality is that Miller; McFarlane
provided a dictum for almost any proposition which we practitioners wish to advance for our client’s case in financial remedy proceedings, and that fashions in approach continue to wax and wane. The judicial search for principle not articulated in statute continues unabated in areas such as categorisation of matrimonial and non-matrimonial property and spousal maintenance. The effect on litigation of the lack of clearly articulated principles for financial remedies was tellingly highlighted by Moylan J in the recent case of BD v FD (Financial Remedies: Needs)  EWHC 594 (Fam),  FLR (forthcoming and reported above at p 670)
. It was agreed that the wife’s award was to be determined exclusively by application of the needs principle. Yet as Moylan J aptly observed at the outset of his judgment:
‘I need only state the parties' respective open positions at this hearing to demonstrate that they cannot both be within the bracket of fair awards. The wife seeks an award which will provide her with resources totalling £29 million. The husband proposes an award which will provide the wife with just over £8 million.’
We add that this disparity stemming from absence of principle is scarcely conducive to the settlement ethos which David sees as a characteristic of the English family law system. In fact the opposite is true. A civil law system which has fixed rules of equal division of defined matrimonial property is far more conducive to settlement, precisely because there is far less to argue about. We have much to learn from civil law systems, and Brexit would severely curtail our opportunities to benefit from the knowledge of our nearest neighbours.
We must also address David’s concerns that ‘EU laws’ make some marital financial agreements binding which have been entered into by vulnerable spouses without legal advice, which he identifies as ‘a real gender issue’. We are not aware of EU laws – as opposed to national laws – which have this effect. Furthermore, the legal position even under national laws in civil law systems is in reality somewhat different from that portrayed. A notarised agreement electing a matrimonial property regime (typically separation des biens) is a matter of private contract entered into at the point of marriage. Courts in civil law systems do not have the power on divorce to interfere with such contracts, although they have powers to award balancing or compensatory lump sum payments to remedy financial inequality between the divorcing parties (such as the prestation compensatoire under the Art 270 of the French Code Civil). It civil law countries it is commonly illegal to enter into agreements (with or without independent legal advice) which would forego maintenance claims.
David is no fan of applicable law and says that if we Brexited, ‘we would not miss the continued struggles with the EU attempting to impose it on us’. But once again we must put family law issues in their proper context. In these days of ever more specialised practices, we risk losing sight of the bigger picture. Family law is out on a limb: in other areas of English law, the concept of applicable law (choice of law) is well established and considered wholly appropriate. Classic texts such as Dicey, Morris and Collins on the Conflict of Laws
contain extensive sections on applicable law in various fields. To take a few examples, the proper law of the tort was developed both in common law and by statute (Boys v Chaplin
 AC 356, Red Sea Insurance Co Ltd v Bouygues SA
 1 AC 190, Private International Law (Miscellaneous Provisions) Act 1995, s 12; see now the different rules applied by the EU Rome II Regulation 2007 in respect of non-contractual obligations). Intestate succession to movable property is governed by the law of the testator’s last domicile (since Pipon v Pipon
(1744) Amb. 799) and the lex situs
governs the validity and effect of transfer of movable goods (the long established authorities were reviewed by Moore-Bick J (as he then was) in Glencore International AG v Metro Trading International
 1 Lloyd’s Rep 284, The proper law of the contract was applied in English common law (Mount Albert Borough Council v Australasian Temperance and General Assurance Society
 AC 224) until the EU Rome I Regulation on contracts of 2008 introduced its own choice of law rules.
Application of the lex fori in the English law of divorce and financial remedies is in reality simply a default position in the absence of a choice of law rule. Applicable law is not unknown even in the family law field. The law governing capacity to marriage has long been identified as either the law of the parties’ ante-nuptial domiciles (Brook v Brook
(1861) 9 HLC 193 or (more controversially) that of the intended matrimonial home (Radwan v Radwan (No 2)
 Fam 35). Formal validity of marriage is governed by the lex loci celebrationis
(Berthiaume v Dastous
 AC 79. We should rethink our attitude towards applicable law. Choice of law rules (whether developed at national level or enshrined in EU law) serve the wholly meritorious purpose of identifying the law with which the legal dispute has the most appropriate connection.
We could go on (and on), but we will resist the temptation in the interests of the forests of Europe. Our respect and admiration for the EU is equalled only by that which we share for the great Bob Dylan, whose lyric should be a dire warning to those in favour of exit:
‘How does it feel to be on your own?
With no direction home?
A complete unknown?
Like a rolling stone?’
We hope we do not have to say ‘We told you so’.Fin
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