Many of you will have experienced the Eurovision Song Contest recently… once a year, every year, it comes and goes. Well, this glittery musical spectacle of international co-operation and competition got us thinking about other forms of international co-operation and competition, from a legal perspective. (Of course!). So we thought that in honour of Eurovision we would take a look at the ways in which European countries co-operate, or not, over matters of family law.
As you might imagine with international law the position is fairly complex.
We start with the question of where proceedings for divorce and financial remedies can be issued. This is governed by a European Council regulation known colloquially as “Brussels IIR”, which provides that a court in a member state can entertain an action for divorce, separation or nullity where:
- Both spouses are habitually resident there;
- Both spouses were last habitually resident, and one still resides there;
- The respondent is habitually resident there;
- The petitioner is habitually resident, and either has resided there for at least a year preceding the application or is domiciled (or a national) there and has resided there for at least six months preceding the application;
- Both spouses are domiciled (or nationals).
This has led to debate and cases arguing the meaning of habitual residence and domicile; but for our purposes, if both parties are resident in one country then only that country has jurisdiction in their divorce matters. However where the two people involved live in different countries, or they have ties to several countries, more than one court will potentially have jurisdiction.
In those circumstances it becomes a competition. Different countries apply different laws and principles to divorce, and so the interests of each spouse may well be better served by getting divorced in different countries: for example the London divorce courts are perceived as being generous to women, so frequently women want to petition here, whereas men might prefer the divorce to be dealt with in a country with a stricter approach to entitlement.
Unfortunately due to the European legislation, where more than one country could potentially hear divorce proceedings, it can turn into an undignified race to issue a divorce petition in order to secure jurisdiction. Brussels IIR provides that whichever court is “first seised” of proceedings, ie where they are first issued, has jurisdiction to deal with them, and if a court in a second country receives a petition, it must refuse to deal with it.
For this reason, if you think your divorce could potentially be dealt with in more than one country, it is essential to take advice early on as to which countries could deal with it, and their approaches. Note though, that the “jurisdiction race” applies only between European States. For non-EU states and further afield other considerations apply: jurisdiction depends on where it is most appropriate that the proceedings should take place.
There is an added complicating factor within Europe, in that the European Maintenance Regulation 2011 has added another layer of uncertainty regarding whether a financial application has to be made in that country at the same time to ensure that financial matters are dealt with there alongside a divorce. As a result, most solicitors are now starting financial proceedings at the same time as divorce, which means that alternative dispute resolution may be more difficult to get off the ground (although the immediacy of European cases in general does not tend to lend itself to non-court solutions as easily as if the only considerations are domestic). This narrowing of options is regrettable, and the law is as yet untested.
Once the question of which court in which country has been resolved, there is the question of which law will be applied to a matrimonial dispute. Some countries, England being one, apply only their own law to disputes before them. Others may apply the law of the parties’ nationality, or may allow parties to specify the applicable law to be used in their own courts.
Fifteen EU states have signed up to an enhanced cooperation procedure (known as the Rome III Regulation) which harmonises rules between the signatory states as to which country’s laws should be applied in international divorces, which aims to provide certainty and prevent the race to court under Brussels IIR. The UK has no intention of implementing the Regulation, or more generally of co-operating more closely with Europe on matrimonial matters (it has no Euro Vision- boom, boom).
For disputes concerning children and their arrangements, the principle under Brussels IIR that the courts of a member state have jurisdiction in respect of any child who is habitually resident in that state. Working out where children are habitually resident can be difficult, especially if they travel around with their parents: the answer is linked to the habitual residence of the child’s parents but not strictly dependent on it.
We have, for reasons of space, had to touch only very lightly on this complex area of competition and cooperation between European countries. If you would like to know more, and discuss how this could affect you, please feel free to call Adam, Simon, Gail or Sue on 01223 443333.