On Friday 4 June 2010, the Justice and Home Affairs (JHA) Council of the EU authorised the first "enhanced cooperation" in the history of the European Union. It allows 14 member states to go it alone, without the support of the entire EU member states. It adopts harmonised rules for determining on divorce of an international couple which country's laws would be applied rather than necessarily the local law of the country concerned. On 1 June 2010, MEPs had supported the measure.
It is Rome III by the back door after the EU failed to gain unanimity because of opposition from countries such as the UK, Sweden, Republic of Ireland and others who only apply their own local law and did not want to apply the law of other countries. Instead these 14 countries which already operate the system of applicable law asked the EU to adopt harmonisation rules similar to Rome III.
So how should we feel about this in England and Wales? It is excellent news. Indeed it is what the EU should have introduced years ago, before foolishly trying to impose applicable law on countries which for centuries had only applied their own local law. Across the many countries in continental Europe which routinely apply the law of other countries, the rules on when to do so were confusing, contradictory and uncertain. This new EU measure provides harmony, certainty and clarity. Not just for those within those countries but for those of us advising from England in European cross-border forum issues, of which there are now very many cases.
Is it also too much to hope that the EU will now put its energies into much-needed reforms of cross-border family law, and lay to rest its attempts to impose applicable law across the entire EU, including on stubbornly resistant England?
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 author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. 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.