David Hodson, Eleri Jones and Lisette Dupré as part of an EU Law Working Group
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.
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