English family law after Brexit
On Wednesday, 22 March 2017, the House of Commons Justice committee produced its report on the implications of Brexit for the justice system. In respect of family law, chapter 3 of the Report, the recommendation is that the government should seek to maintain the closest possible co-operation with the EU on family justice matters, and in particular to retain a system for mutual recognition and enforcement of judgments. These areas of judgments include orders in respect of children, financial outcomes and divorce. The third is presently within the EU law known as Brussels II. This gives automatic recognition of divorces made by courts across the Member States. I wrote an analysis and commentary which can be found here.
But Brussels II has a number of major difficulties, particularly the forum choice when two or more countries have jurisdiction for a divorce.
The House of Commons Report rightly refers to the controversy in the divorce context with Brussels II. It referred to many witnesses, oral and written, criticising the frequent race to issue. It referred to the FLBA saying that the more legally astute spouse, often the financially stronger spouse, can arrange to win the race in the favoured jurisdiction. Many practising lawyers and judges have condemned this law as very unfavourable on the financially weaker spouse, and being very arbitrary and unfair. Resolution said that it prevents opportunities for families to mediate and reconcile. The Report states that the FLBA agreed absolutely with my firm’s claim in our written submissions that Brussels II discourages mediation and can accelerate the breakdown of savable marriages. The Report did not mince its words in its criticisms of the forum criteria adopted by the EU and the very adverse consequences of Brussels II.
Might there be another international law which could be used in the context of cross-border recognition of divorce orders, without the baggage of the Brussels Regulation? Step forward from the shadows and historic obscurity the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations. This article looks at this international legislation and how it might have a future role.
The 1970 Hague Divorce Recognition Convention
It’s formal title is the Convention on the Recognition of Divorces and Legal Separations. It was signed on 1 June 1970 and became effective on 24 August 1975.
It regulates the recognition of divorces and legal separations provided they have been performed according to the correct legal process in the state where the divorce was obtained.
There are 20 signatories. These are: Albania, Australia, China in respect of Hong Kong, Cyprus, the Czech Republic, Denmark, Egypt, Estonia, Finland, Italy, Luxembourg, Moldova, the Netherlands, Norway, Poland, Portugal, Slovakia, Sweden, Switzerland and the UK to include Bermuda, Gibraltar, Guernsey, Jersey and the Isle of Man. In other words it covers 12 of the EU Member States plus the UK.
The Brussels Regulation supersedes the Convention between Member States. Once the UK leaves the EU, this Convention will again be effective between the UK and the signatory member states.
Issues regarding marriage and divorce were one of the first topics of international treaties established by the Hague Conference on Private International Law. The first on divorce and separation was in 1902. The 1970 Convention aims to facilitate the recognition in one contracting state of divorces and separations obtained in another contracting state. It came into English law by the Recognition of Divorces and Legal Separations Act 1971. Therefore it assures divorced spouses that their new status will receive the same recognition abroad as in the country where the divorce was obtained. It simplifies the opportunity of remarriage by the automatic recognition of the divorce. It clarifies the legal relationship of the couple concerned.
It applies to divorces which have followed judicial or other proceedings officially recognised in the state and which are legally effective there, Art 1. Although talaqs and similar religious divorces do not apply to the civil justice systems around Europe, such divorces would be recognised in England if they were registered with a state approved agency. The definition includes ‘other’ proceedings which might be administrative in some way but still with the official recognition of the country where it was pronounced.
The Convention only applies to the final decree or order of divorce. It does not apply to any findings of fault or any ancillary orders to the divorce, Art 1. Annulment of marriages are outside the Convention. Any registration system of a foreign divorce is left to the country concerned and not within the Hague Convention.
It does not establish direct rules of jurisdiction, unlike Brussels II. However recognition of a divorce is conditional on certain connections with the state where the divorce occurred. These are fairly broad and set out in Art 2. They are the habitual residence of the respondent, the habitual residence of the petitioner along with either one year habitual residence or last joint habitual residence, joint nationality, the nationality of the petitioner along with habitual residence or one year habitual residence in the previous two years, or the nationality of the petitioner along with physical presence at the time of institution of the proceedings and the parties last resided together in a country whose law, at the time of commencement of the proceeds, did not provide for divorce.
For countries such as England and Wales which uses domicile instead of nationality, it provides, Art 3, that habitual residence shall be deemed to include domicile.
Refusal of recognition can occur where adequate steps were not taken to give notice of the proceedings to the respondent, Art 8, or if the divorce is incompatible with a previous decision determining the matrimonial status of the spouses and that decision was in effect recognised in the state in which recognition is sought, Art 9. Recognition can be refused if it would be manifestly incompatible with public policy, Art 10. There are other distinctive provisions on refusal of recognition which rarely arise. If proceedings concerning divorce or legal separation are going on in one country, a signatory state can suspend those proceedings if there are also proceedings going ahead regarding matrimonial status of either party in another contracting state, Art 12.
Once there is recognition under this Hague Convention, a state cannot then prevent either spouse from remarrying on the ground that the law of another state does not recognise that divorce, Art 11.
Reservations are possible at the time of ratification or accession.
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By: David Hobson OBEBack to News
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