As an unwelcome by-product of our decision not to ‘opt in’ to the Hague Protocol, we now have a twin-track enforcement regime with the EU: maintenance orders originating in other states (apart from Denmark, whose orders must be registered) are enforceable directly, without the need for a declaration of enforceability (ie registration); UK orders, however, require such a declaration in the country of enforcement as a prerequisite to enforcement. It is ironic that, while we now have an overly complex scheme for the enforcement of maintenance orders, we have no regime addressing directly the problem of enforcement of non-maintenance based lump sum and property adjustment orders. Such orders fall between the two stools of the Maintenance Regulation (as they are not maintenance orders) and the Recast Brussels I Regulation (Regulation (EU) No 1215/2012) (as they are, rightly or wrongly, deemed by the CJEU to be ‘rights in property arising out a matrimonial relationship’ and as such excluded from its scope: see
Van den Boogaard v Laumen [1997] 2 FLR 399).
Secondly, a highly retrograde innovation is the provision (not found in the Regulation’s predecessor, the Brussels I Regulation), that its jurisdictional rules apply even where no other EU state has jurisdiction. The need for this global extension of the reach of EU law is baldly stated, without explanation or justification, in recital 15:
‘The circumstance that the defendant is habitually resident in a third State should no longer entail the non-application of Community rules on jurisdiction, and there should no longer be any referral to national law. This Regulation should therefore determine the cases in which a court in a Member State may exercise subsidiary jurisdiction.’
It is hard to see what single market or other policy consideration, or what legal principle, could justify preventing a Member State from applying its national jurisdictional rules in cases involving non-EU Member States. There are over 190 nation states in the world. Only 28 of them are EU Member States. This issue is brought into stark relief by the ‘sole domicile’ issue. By Art 3(c), a maintenance claim may be brought ancillary to proceedings concerning status (eg divorce) ‘unless that jurisdiction is based solely on the nationality [in the UK and Ireland, domicile] of one of the parties’. In
Baldwin v Baldwin [2014] EWHC 4857 (Fam), [2016] FLR (forthcoming and reported at [2016] Fam Law 161) where the Asia-resident H petitioned for divorce in England pleading his own sole domicile, and W lived in Ethiopia, there was no connection with any other EU state. The English court clearly had jurisdiction to grant a divorce (under the residual jurisdiction in Brussels IIa, Art 7) and make sharing-based financial remedy orders – yet, by virtue of Art 3(c), not maintenance. In order to do justice, the English court, in addition to finding jurisdiction under Arts 4 (choice of court) and 5 (appearance of defendant), also found jurisdiction to exist under Art 7 (
forum necessitatis), and in so doing arguably strained the meaning of the word ‘exceptional’ in that Article.
Thirdly, the principle of legal certainty in relation to the Regulation’s jurisdictional criteria has been dealt a serious blow by the tortuous reasoning of the CJEU in
A v B (Case C-184/14) [2015] 2 FLR 637. It is clear from the Regulation’s recitals and Art 3 that there is no hierarchy among the jurisdictional bases. Despite this, the CJEU decided that where country A is seised of a child maintenance claim that is (prima facie) ancillary to status (eg divorce or separation) proceedings (Art 3(c)), and country B is seised of a child maintenance claim ancillary to parental responsibility proceedings (Art 3(d)), then, taking into account the best interests of the child (which are nowhere referred to in the Regulation), the maintenance claim may be regarded as ancillary only to the latter proceedings and not the former, albeit that under national law the claim may be unquestionably ‘ancillary’ to the divorce proceedings. The CJEU has, as so often, ignored the clear wording of the text and adopted a ‘purposive’ approach: ie this is what the law should be and this, therefore, is what it is.
Lis pendens v discretion
Next, post-Brexit, we would no longer be bound by the
lis pendens provisions of the Brussels IIa and Maintenance Regulations. Our courts could once more achieve just outcomes by deciding, in accordance with long established principles of
forum conveniens, the country with which a case has the closest connection and is best placed for trying it.
Lis pendens encourages the race to court. It discourages negotiation and settlement. It favours the rich, who can afford specialist legal advice. Far from introducing legal certainty,
lis pendens has generated its own litigation industry. Jurisdiction shopping is the new forum shopping. Argument about arcane procedural and semantic technicalities has abounded as a result: see, by way of example and most recently,
E v E [2015] EWHC 3742 (Fam), [2016] FLR (forthcoming and reported at [2016] Fam Law 301);
S v S (Brussels II Revised: Art 19(1) and (3): reference to CJEU) [2015] 2 FLR 364 (in which, moreover, a request was made to the CJEU for a preliminary ruling (
A v B (Case C-489/14), [2016] 1 FLR 31);
Ville de Bauge v China [2015] 2 FLR 873. Costly arguments about habitual residence have proliferated. Judges in several reported cases have had to wrestle with the meaning of the poorly drafted, ambiguous fifth indent of Brussels IIa Art 3(1)(a), which states that jurisdiction shall lie with the courts of a Member State in whose territory ‘– the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made’, a provision that Aikens LJ in
Tan v Choy [2015] 1 FLR 492 observed,
obiter, was capable of (at least) three possible constructions.
The European Commission is currently reviewing Brussels IIa. It is unlikely that amendments meeting these substantial concerns will result, not least because unanimity across Member States is required. The truth is that, for so long as the English divorce courts are an attractive forum, spouses will seek ways of having their cases heard here, and their lawyers will devise ingenious arguments to achieve that end. That being so, why not vest our judges once again with the power to filter out, on a discretionary, forum conveniens basis, those cases which should be tried here from those that should not, rather than leaving it to rigid and arbitrary lis pendens rules?
Power to conclude international agreements
Finally, at present, largely as a result of the expansionist jurisprudence of the CJEU, Member States are unable to enter into international agreements in a number of key areas, where the EU has so-called exclusive external competence. Space does not permit discussion of this doctrine, but the reader is referred to the controversial Opinion 1/03 (EU’s exclusive competence to sign the 2007 Lugano Convention) and Opinion 1/13 (EU’s exclusive competence to agree to the accession of non-Member States to the 1980 Hague Convention). For a scathing critique of the latter decision by a distinguished academic commentator, see
here. The EU has also asserted exclusive competence in matters covered by the Maintenance Regulation. As result, Member States were powerless to sign up individually to the 2007 Hague Maintenance Convention (see Council Decisions (2011 220/EU and 2011/432/EU). Post-Brexit, we would be free once more to conclude agreements with non-Member States that we adjudged to be in the interests of our own system of family justice.
So Vitalstatistix – fear not – the sky will not fall in.
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