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The CJEU casts doubt on England's new post-Brexit divorce jurisdiction law

Date:19 MAY 2022

Summary

A recent decision of the CJEU has addressed the definition of habitual residence for divorce jurisdiction under Art 3 of BIIA.  It confirms the interpretation hitherto held in England that a party can have only one habitual residence at one time.  But it has also given a strong indication that habitual residence has to be continuous for the requisite period before the date of issuing of proceedings and not just on the date of issue.  This has been a controversy in English case law over many years, with the majority of professional opinion allegedly being that habitual residence was only necessary on the date of issue and merely residence for the requisite preceding period.  The Ministry of Justice relied on this interpretation in drafting England’s new post Brexit divorce jurisdictional law, on the basis of following EU law.  Now, seemingly, that is not so.  What will now be the position in England dealing with cases involving EU Member States?  In any event what is the position with transitional cases?  The authors have written a detailed and expanded article on this, forthcoming in the July issue of Family Law.

English divorce legislation on leaving the EU

Divorce jurisdiction was one of the few areas of family law where national law had been replaced entirely by EU law. What had been domicile or 12 months habitual residence of either party changed dramatically in March 2001 when the UK joined the Brussels Regulation (Initially Council Regulation (EC) No 1347/2000 repealed and replaced by Council Regulation (EC) No 2201/2003.  The elements of divorce jurisdiction were largely unchanged, save for the wording of the lis pendens provisions in Art 19.1).  The Regulation introduced (Art 3 ) a menu of choice, with several grounds based on habitual residence and common nationality (Domicile for the UK and Ireland: Art 3. 2).  In the context of dramatically different financial outcomes across the EU and the lis pendens rule securing jurisdiction for the party first to issue (Art 19.), two grounds (5th and 6th indents of Art 3) in particular received attention as being the choice of jurisdiction (forum actoris). There were conflicting English decisions about their interpretation, specifically whether habitual residence had to be proven throughout the preceding six or 12 months or whether habitual residence had to be proven only on the day of issuing the petition, provided the petitioner had had simple, ordinary residence (which could be in parallel with residency in another country) for the preceding period. This controversy was unresolved when the UK left the EU.

On leaving the EU, the Ministry of Justice sensibly decided that there should be as much continuity as possible with the divorce jurisdiction in BIIA (Albeit adding sole domicile now as a primary basis, not merely as a residual jurisdiction)..  However, when the draft legislation was published, practitioners immediately saw a flaw.  Instead of repeating Art 3 BIIA verbatim, the MOJ had added a gloss to the 5th and 6th indents.  Instead of habitual residence if has resided for 6 months et cetera, it said habitual residence and has resided for 6 or 12 months: the Marinos ([2007] 2 FLR 101) interpretation. The present authors were both involved in discussions with the MOJ and challenged their approach.

The MOJ were adamant theirs was the proper interpretation for continuity purposes. The argument that controversy remained and that it was better to continue the precise BIIA wording failed. So the current English legislation for divorce jurisdiction (s 5(2) of the Domicile and Matrimonial Proceedings Act 1973, as amended by paras 7 and 8 of the Schedule to the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 (SI 2019/519)) allows the applicant to be habitually resident only on the day of issuing the proceedings, provided he/she has had ordinary, simple residence for the previous 6 or 12 months Whilst this is undoubtedly good for the English profession in allowing a greater number of potential cases, it puts us out of step with EU law.  Whatever may be personal views on EU membership, if England is to have laws based on EU laws, then they should be the exact laws.  Anything else will create polarity and litigation.  

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The CJEU decision

IB v FA (Case C-289/20, 25 November 2021) concerned the issue of international families with two homes.  The French husband and the Irish wife purchased the family home in Ireland in 1994 and had 3 children.  Family life was based in Ireland.  However, since 2010 and specifically since 2017 the husband worked in France on a stable and permanent basis.  He had a social life there, lived in his father’s apartment and a holiday home in France was purchased in 2017.  The French court found that family life until separation was in Ireland.  No separation occurred before the husband issued divorce proceedings in France in December 2018.  His centre of professional interests was France.  Where was his habitual residence for the purposes of Art 3 indent 6?  The Cour d’Appel de Paris inferred that both the French and the Irish courts had jurisdiction based on the husband’s habitual residence in each. It referred to the CJEU for a preliminary ruling the question whether an individual can have habitual residences in more than one Member State at the same time. 

The CJEU ruled that an individual can have only one habitual residence at any one time, relying on five considerations:

  1. the use of the singular term ‘habitual residence’.  
  2. the centre of interests approach does not support a conclusion that several residences have that character simultaneously.
  3. the objective of the Art 3.1(a) rules is to ensure a balance between free movement of persons within the EU and legal certainty: habitual residence in several Member States would undermine the latter.
  4. Art 3.1(a) has consequences beyond divorce, in Art 3(c) of Regulation 4/2009 (The Maintenance Regulation ) and Art 5 of Regulation 2016/1103 (The Matrimonial Property Regime Regulation )
  5. Haddi (Case C-168/0.) accepting that courts of several Member States can have jurisdiction under Art 3.1(b) where spouses have several common nationalities, is distinguishable: nationality is a different concept requiring no interpretation.

The CJEU concluded that a spouse may have only one habitual residence at a given time but may have several residences.

Although not formally part of the referred question, both the CJEU judgment and the opinion of the Advocate-General appear to assume that indents 5 and 6 of BIIA require habitual residence to be established throughout the requisite periods, and not mere residence followed by habitual residence on the date of issue of the divorce proceedings. The Advocate General emphasises that, given the importance of intention, habitual residence may be established quickly. To establish a real connection with the jurisdiction seised, the temporal element of that habitual residence is required by indents 5 and 6.

EU law continues to apply to English divorce proceedings issued by 23.00 on 31 December 2020. However, English courts are no longer bound by CJEU decisions but may have regard them.  Undoubtedly IB v FA will be highly persuasive in transitional cases in the UK. 

The position now in English national law

English courts and practitioners are now in difficulty.  National legislation is clear that habitual residence has only to be in existence at the date of issuing of the English divorce proceedings, preceded by simple, ordinary residence for the prior 6 or 12 months. EU law on which the provision was allegedly based is now interpreted differently, requiring habitual residence to be established for the 6 or 12 months prior to the issue of divorce proceedings, as incidentally most have for many years already.  The significant difference in interpretation looks set to have ramifications from the perspective of EU Member State. England may well now be more open and welcoming because of its wider divorce jurisdiction, but this will cause problems for recognition and enforcement of English orders (including financial orders ancillary to divorce) in an EU Member State. Will recognition and enforcement be refused under the national law of a Member State because the jurisdictional link required in England and Wales is now weaker? (European Union (Withdrawal) Act 2018 as amended, s 6). Given these problems, might instead a Family Court judge in England and Wales give to our domestic legislation the interpretation as in Munro ([2008] 1 FLR 1613) and Pierburg ([2008] 1 FLR 1613) and now from the CJEU?  

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