I. INTRODUCTION
In May 2000, the European Council adopted a Regulation (Regulation 1347/2000, or the ‘Brussels II Regulation’) harmonizing jurisdiction and recognition in divorce, annulment and separation, and in parental responsibility matters arising in the context of such matrimonial proceedings.Footnote 1 This Regulation was adopted as a measure of ‘judicial cooperation in civil matters’ to facilitate the development of an area of ‘freedom, security and justice’.Footnote 2 This very anodyne language suggested an innocuous measure of procedural harmonization,Footnote 3 and indeed on the face of it, the Regulation did not effect any very radical change in the law. Certainly in England,Footnote 4 the harmonized jurisdictional bases were broadly reflective of the pre-existing grounds for jurisdiction in matrimonial causes,Footnote 5 and the Family Law Act 1986 already provided for almost-automatic recognition of most foreign matrimonial decrees.Footnote 6 English courts seised of divorce proceedings already had accessory jurisdiction over related child proceedings,Footnote 7 and child custody orders from other EU Member States were already afforded recognition under the Luxembourg Convention.Footnote 8 In Ireland, the Regulation's provision for automatic divorce recognition marked a significant shift in policy,Footnote 9 but the earlier legal landscape was otherwise broadly the same as in England.Footnote 10
Despite these initial impressions of relatively limited change, it has since become apparent that the adoption of the Brussels II Regulation marked a watershed in the evolution of EU law, and had very profound indirect consequences, in its curtailment of judicial discretion and in its impact on, and interaction with, the wider legal, social and political environment. In hindsight, it is also apparent that the Regulation heralded a new era of European Family Law, with Member States ceding competence in core areas of social policy.
One decade on, this article will explore the far-reaching implications of the adoption of Regulation 1347/2000, with particular (although not exclusive) emphasis on the English and Irish perspectives. It will be argued that the Regulation (and its successor, Regulation 2201/2003)Footnote 11 had significant indirect negative impact, in particular in the sphere of matrimonial causes (and to a lesser extent in parental responsibility matters), and most notably in the common law jurisdictions. It will also be argued that Regulation 1347/2000 paved a hazardous path in terms of the future development of EU law. Thus, the focus of this article is not on the minutiae and individual merits of the jurisdiction and recognition grounds laid down, but on the wider consequences. It will be argued that, in hindsight, the common law jurisdictions of England and Ireland might have been better served had their governments ‘opted out’ of Regulation 1347/2000.Footnote 12
II. REGULATION 1347/2000 AND THE SUBSEQUENT EUROPEANIZATION OF FAMILY LAW
While family maintenance fell within the scope of the ‘Brussels I Convention’Footnote 13 (and later Regulation 44/2001Footnote 14, the ‘Brussels I Regulation’), Regulation 1347/2000 was the first EU measure to deal exclusively and directly with core family law matters: dissolution of matrimonial status and allocation of parental responsibility—albeit from a private international law perspective.Footnote 15 The text of Regulation 1347/2000 was based on the ‘Brussels II Convention’ of 1998 (which never came into force).Footnote 16 The impetus for the Brussels II Convention (and ultimately Regulation 1347/2000) arose from a suggestion by the German delegation to the European Community Judicial Cooperation Working Group in 1992.Footnote 17 Originally it was intended that the Convention would be confined in scope to divorce, annulment and separation;Footnote 18 however, despite the objections of some Member States,Footnote 19 it was extended to cover parental responsibility matters arising in the context of matrimonial proceedings.Footnote 20
Following its adoption, Regulation 1347/2000 was criticized for its unfair treatment of non-marital children,Footnote 21 and a new replacement Regulation (Regulation 2201/2003 or the ‘Brussels IIbis Regulation’) was adopted, with enlarged parental responsibility provisions covering all children (marital and non-marital) and extending to parental responsibility disputes arising outside of the context of matrimonial proceedings. A proposal for increased cooperation in matters of accessFootnote 22 had metamorphosed into a much wider proposal for regulation of child abductionFootnote 23 and this proposal was ultimately given expression in articles 10 and 11 of Regulation 2201/2003.Footnote 24 The Brussels IIbis Regulation also provided for the immediate recognition of access and return orders (without any exequatur).Footnote 25
By the time Regulation 2201/2003 came into force in March 2005, the Commission had already issued a Green Paper proposing the reformulation of the pre-existing maintenance jurisdiction rulesFootnote 26 (in part to improve their alignment with Regulation 2201/2003Footnote 27). In the same Green Paper, it was proposed to harmonize the lex causae rules in maintenance mattersFootnote 28 and to abolish the exequatur procedure in maintenance recognition.Footnote 29 The proposed lex causae reform was presented as a response to the legal uncertainty arising from the extensive jurisdictional options under Regulation 44/2001 and indirectly under Regulation 1347/2000.Footnote 30 Articles 41 and 42 of Regulation 2201/2003 were cited as models for the proposed maintenance recognition scheme.Footnote 31 In 2005 a draft Maintenance Regulation was issued,Footnote 32 along with a Green Paper proposing harmonized choice-of-law rules for divorce cases and the abolition of the residual (national-law) bases for jurisdiction in divorce matters.Footnote 33 Again these proposals were directed towards perceived shortcomings in the Brussels IIbis scheme.Footnote 34 These ‘Rome III’ proposals were given more concrete form in a draft Regulation published in July 2006.Footnote 35 On the same day, another Green Paper was issued, this time dealing with jurisdiction, recognition and choice-of-law in matrimonial property conflicts.Footnote 36 This envisaged a measure that would fill a regulatory gap (insofar as matrimonial property conflicts fell outside of the scope of Regulations 44/2001 and 2201/2003) and would provide a degree of consistency as between matrimonial property conflict rules and the pre-existing EU legislation. It was further suggested that property disputes arising from registered partnerships and de facto unions might also be covered. Thus, by 2006, the apparently innocuous Brussels II agenda had spiralled into a much wider ‘Europeanization’ project, with each ensuing measure providing leverage for further incursions into domestic competence. Of course, some of these developments had been flagged as possibilities in the ‘Vienna Action-Plan’Footnote 37 and ‘Tampere Conclusions’,Footnote 38 but the EU's ambitions appeared to be ever-expanding (both personally and materially)—and Regulation 1347/2000 was widely recognized as the vital first step on this slippery slope.Footnote 39
After 2006, the EU's legislative expansionism appeared to moderate somewhat. While a Regulation on jurisdiction, recognition and applicable law in maintenance matters was eventually adopted at the end of 2008 (Regulation (EC) 4/2009),Footnote 40 the June 2008 Justice and Home Affairs Council meeting failed to reach political agreement on Rome III.Footnote 41 There has, as yet, been no publication of a draft Regulation on matrimonial property. However, it should not be assumed that the EU's interest in family law has receded. To the contrary, recent Commission and Council communications on the ‘Stockholm Programme’ refer to a new plan to tackle cross-border recognition of civil status acts such as marriage and civil partnership.Footnote 42 The new ‘programme’ also reaffirms the Union's determination to adopt matrimonial property rules.Footnote 43 Meanwhile, the ‘Rome III’ applicable law project has been revived using the mechanism of ‘enhanced cooperation’.Footnote 44 The CouncilFootnote 45 has already granted authorization to proceed with the Commission's proposal for harmonization in (14) participant Member States.Footnote 46 The Commission has also reiterated its commitment to a wider abolition of exequatur in family law matters.Footnote 47
While all of the legislative activity to date has been in the domain of private international law, there is an expectation that European competence may soon spill over into the sphere of substantive family law.Footnote 48 This possibility is underpinned by the establishment in 2001 of the Commission on European Family Law (CEFL), funded in part by the EU.Footnote 49 CEFL has produced reports identifying the common core of family law and suggesting model laws based thereon.Footnote 50 For the moment, the CEFL reports and model laws are presented as a basis for voluntary harmonization, insofar as national legislatures seeking to reform their family laws may consult and draw upon the reports and the approaches suggested.Footnote 51 However, it remains a possibility that the CEFL recommendations could be used as a platform for EU legislative action in the future,Footnote 52 and consideration of harmonization of substantive law remains very much a live issue.Footnote 53 Those favouring substantive harmonization argue that it is the rational culmination to the process initiated by Brussels IIFootnote 54 (and the only means of truly abolishing barriers to the free movement of people).Footnote 55 The private international law harmonization of Brussels II (and Brussels IIbis) is thus characterized as the beginning of the process of fuller harmonization of family law,Footnote 56 and as justification for substantive harmonization.Footnote 57 These developments and perspectives further illustrate the great symbolic importance of the adoption of Regulation 1347/2000.
III. BRUSSELS II, BRUSSELS IIBIS AND THE INTEROPERABILITY OF LEGAL STRUCTURES
A. Introduction
The effectiveness of any new legal structure depends to an extent on its interoperability with existing legal structures, and the compatibility of its underlying logic and philosophy with the logic and philosophy of the existing law. In this regard, Brussels II and its successor Brussels IIbis are most problematic, in particular in their interaction with rules and policies of substantive family law, domestic private international law and other aspects of EU law.
B. Clashes with Fundamental Policy in Member States
The (virtually identical) divorce provisions of Brussels II and Brussels IIbis were doomed to clash with fundamental policy both in socially-liberal and socially-conservative states. For example, in the Netherlands, in 2005, a divorce was granted to a couple who were habitually resident in Malta and who should not, under Brussels II, have been granted a divorce in the Netherlands.Footnote 58 The Hague Court of Appeal refused to adhere to the terms of the Regulation because its effect would have been a complete denial of divorce to a Dutch national.Footnote 59 In Ireland, Brussels IIbis tends to undermine fundamental policy as expressed in the divorce provision of the 1937 Constitution.Footnote 60 Article 41.3.2° (introduced by constitutional referendum in 1995) provides that a court may grant a divorce only where the spouses have lived apart for four years, there is no prospect of reconciliation and proper provision has been made for the spouses and children. This formulation was intended to ensure that there would be ‘no quick or easy divorce’Footnote 61 and is clearly indicative of a favor matrimonii ethos.Footnote 62 Brussels IIbis, on the other hand, is considered to embody a favor divortii philosophy, with its wide array of jurisdictional bases (some of which are based on the petitioner's connections only) and its provision for automatic recognition of positive but not negative judgments.Footnote 63 The two systems clearly come into conflict insofar as the Irish authorities are obliged under Brussels IIbis to recognize a divorce granted in respect of an Irish marriage in another Member State, even in a clear case of evasive forum shopping. This problem was recognized at the time of negotiating the Brussels II Convention and the Irish delegation secured a special declaration which purported to allow Irish courts to refuse recognition to evasive divorces in certain circumstances.Footnote 64 However, when the Convention was converted into a Regulation this declaration was not included.Footnote 65 The constitutionality of the Brussels II Regulation was challenged but upheld by the Irish High Court in YNR v MN,Footnote 66 with the court reasoning that the substantive content of Irish divorce law had not been modified by the Regulation.Footnote 67 However, this case concerned a French divorce petition in respect of a marriage of two French nationals, who had lived in France for much of their marriage, and it was arguably a weak test case. Had it been a case of an Irish wife complaining that she had been denied the protection of article 41.3.2° in the context of a petition brought by her Irish husband after one year's residence in another Member State, it would have been much more difficult for the court to maintain that the substantive protection of Irish law had not been affected.
Brussels IIbis is clearly problematic insofar as it impinges on fundamental social policy and puts Member States in the difficult position of having to choose between adherence to EU obligations and commitment to their own fundamental policy. This clash was probably inevitable in the context of an attempt to unify private international law in a domain where, despite some level of convergence,Footnote 68 substantive laws may still differ quite radically.Footnote 69 Previously, there had been a tendency to align domestic private international law to the local divorce policy,Footnote 70 but this was not going to be possible in the context of a measure imposing a single harmonized solution on 26 Member States with divergent divorce laws.
C. Curtailment of Discretion to Decline Jurisdiction in Matrimonial Matters
1. Introduction
In the continental tradition, family courts would automatically decline jurisdiction in the case of a lis pendens,Footnote 71 and would use lex causae rules to deter forum shopping.Footnote 72 In contrast, English and Irish courts tended to adhere to the lex fori,Footnote 73 were less concerned about the order in which proceedings issued,Footnote 74 and relied on the doctrine of forum non conveniens to control forum shopping (staying proceedings in favour of resolution in the natural forum).Footnote 75 While article 15 of Brussels IIbis incorporates a somewhat similar discretion to ‘transfer’ parental responsibility proceedings,Footnote 76 EU harmonization in divorce and maintenance matters has very much followed the continental approach, and jurisdiction is allocated on a first-come, first-served basis, with the implication that the court first-seised is obliged to proceed.Footnote 77 Insofar as this scheme may trigger forum shopping, the EU institutions have responded with solutions based on harmonized lex causae rules.Footnote 78 Thus, even insofar as the jurisdictional grounds themselves remain similar to before, there has been a significant shift in the circumstances in which the English and Irish courts may accept and decline jurisdiction: they are now compelled to decline jurisdiction in cases where previously they would have accepted jurisdiction despite a lis pendens, and are forced to accept jurisdiction where previously they might have declined jurisdiction under the doctrine of forum non conveniens.
This implied suppression of forum non conveniens has disturbed the structural equilibrium of English and Irish law. While continental courts may continue, as before, to use lex causae rules to deter the would-be forum-shopper, in England and Ireland there is no further filter beyond the harmonized jurisdictional rules for divorce and maintenance. In this part, it is argued that forum shopping is a real problem in this context (particularly from an English and Irish point of view), and that the proposed lex causae solutions are inadequate—and inappropriate to the English and Irish legal contexts.
2. Forum shopping as a practical reality
While many commentators expressed dismay at the sidelining of forum non conveniens, arguing that forum shopping would proliferate in its absence,Footnote 79 others have questioned this standpoint, pointing to the lack of direct empirical evidence of forum shoppingFootnote 80 and to the relatively limited body of case-law reporting the use of forum non conveniens in the pre-Brussels II era.Footnote 81 It can also be argued that the applicable law rules of other Member States may remove the incentive to engage in forum shopping. What weight is there in these counter-arguments? While it is true that there is a lack of direct empirical evidence of forum shopping, it must be remembered that Member State court records do not contain sufficient information to affirm or deny the problem.Footnote 82 However, there is considerable anecdotal evidence of forum shopping and many practitioners have confirmed that in their experience, it is a practical reality.Footnote 83 In terms of the previous reported use of forum non conveniens, this can hardly provide a useful guide to the likelihood of forum shopping under Brussels IIbis, because the very existence of the discretion to stay proceedings under the ‘old law’ would have acted as a disincentive to many who might otherwise have engaged in forum shopping. It is the very fact of a guaranteed right to proceed in the chosen forum which underpins the incentive for forum shopping under Brussels IIbis. The third counter-argument set out above (based on the applicable law) is the strongest, and it is true that lex causae rules will prevent certain kinds of forum shopping in certain fora;Footnote 84 however, a small number of European States (including the United Kingdom, Ireland, Sweden and Finland) apply the lex fori in matrimonial causes,Footnote 85 and in such cases the forum shopper can select the forum with the most advantageous substantive laws unhindered by any choice-of-law complications. Moreover, even where foreign law is applied, the lex causae rules vary from State to StateFootnote 86 and the more refined forum shopper may select the forum with the most advantageous choice-of-law rules. Indeed, there is often a bias in favour of the lex fori even in States where foreign law is potentially applicable, and this assists the forum shopper who desires the application of local substantive laws.Footnote 87
Those doubting the potential for forum shopping under Brussels IIbis will also point to the need to establish habitual residence in the selected forum (in the absence of evidence of joint domicile or nationality),Footnote 88 and will argue that this is a relatively onerous requirement which will rule out forum shopping in all but the most extreme cases.Footnote 89 Again there is some substance to this argument. However, its robustness depends on the robustness of the concept of ‘habitual residence’ and it is possible that some Member States may interpret ‘habitual residence’ in such a way as to make its establishment relatively easy. This might be for social policy reasons where a Member State seeks to guarantee easy access to liberal divorce laws,Footnote 90 or possibly even for financial reasons (where a Member State envisages Nevada-style benefits).Footnote 91
Even where ‘habitual residence’ jurisdiction is applied and implemented in more stringent terms, the financial implications of divorce in the ‘natural forum’ (as compared with the financial implications of divorce elsewhere) may make a move abroad worthwhile. This argument reflects the fact that while jurisdiction in financial matters ostensibly falls beyond the scope of Brussels IIbis,Footnote 92 the establishment of primary jurisdiction will often secure secondary jurisdiction in financial matters.Footnote 93 Thus, the variation between Member State practices in financial mattersFootnote 94 will often provide a sufficient incentive for the establishment of a new habitual residence, even if this is significantly inconvenient in other ways.Footnote 95 If financial interests can justify a permanent move to an otherwise unconnected tax haven, they can certainly trigger a relatively short-term move to a divorce-forum providing a financially advantageous outcome (from that party's perspective). It is true that the English and Irish courts are now empowered to grant financial relief notwithstanding the grant of a divorce abroad,Footnote 96 and to a degree this might reduce the incentive to forum shop abroad (because it does not remove the possibility of English or Irish financial relief being granted); however, this power has been exercised sparingly,Footnote 97 and its availability, in the event of a prior financial order from another Member State, is questionable.Footnote 98
In some cases, the acquisition of a new and more advantageous habitual residence may not entail much inconvenience. The spouses may have lived on one side of a state border, in which case a move (on separation) to the other side of the border may involve minimal inconvenience for the party concerned.Footnote 99 A spouse may work for a multinational company, facilitating a temporary secondment to another jurisdiction.Footnote 100 The spouses may have had a second (holiday) home in another jurisdiction (and indeed this is becoming increasingly common).Footnote 101 In each of these circumstances, a case may easily end up before the courts of an inappropriate forum. This may be the deliberate act of a single party, motivated by financial considerations, as outlined above, or seeking a more administratively convenient, or speedier, mode of divorce. It may equally be the act of a party who has moved abroad for non-tactical reasons, and who has petitioned for divorce in his (now) local courts. While this latter situation may seem less objectionable, its implications for the other party may be equally damaging.
While unilateral forum shopping (ie by a single party) is perhaps more common, forum shopping may also be collaborative or bilateral in matrimonial causes. The parties may be united in their desire for a speedy, administratively convenient, divorce, and this form of divorce may not be available in the natural forum. For example, it is thought likely that some Irish couples will agree to forum shop in England in order to avoid the Irish rule which requires four years of prior separation.Footnote 102 This supposition might be challenged on the basis that there is no longer the same social pressure to immediately ‘regularize’ second relationships (insofar as divorce is a ‘licence to remarry’Footnote 103) and that such collaborative action belongs to a bygone era.Footnote 104 This counter-argument carries some weight insofar as informal cohabitation has become much more common and is not stigmatized as it was in the past.Footnote 105 However, notwithstanding such trends, there is still a very great demand for the formalization of second relationships through marriageFootnote 106 (and it is clear that marriage ‘still matters’ very much as a legal institution).Footnote 107 The recent phenomenon of ‘lightning divorce’Footnote 108 in the Netherlands also illustrates a widespread willingness, even in modern times, to engage in collaborative manipulation of the law, and to resort to unorthodox methods, in order to achieve a divorce with minimal delay. In the Netherlands, thousands of couples converted their marriages into registered partnerships, so that they could be dissolved more quickly.Footnote 109 Those challenging the likelihood of collaborative forum shopping, might also point out that Irish parties who are so anxious to divorce as to consider agreed forum shopping in England, might be more likely to take the step of perjuring themselves before the Irish courts, claiming that they have been living apart for four years when that is not the case.Footnote 110 Again, there is some substance to this counter-argument (particularly since McA v McA Footnote 111 where it was decided that ‘living apart’ within the same house was sufficient):Footnote 112 however, this perjury ‘option’ would not be open to everyone (for example, those who have been married for less than four years, or those who have recently had children), and it is conceivable that many others (who might otherwise be willing to commit perjury) might not want to run the risk of telling lies before a local court. Collaborative forum shopping is also facilitated by the existence in some Member States of a culture of minimal scrutiny in uncontested divorces,Footnote 113 and the more States move towards administrative divorce systems without any court hearing,Footnote 114 the less scrutiny there is likely to be. Thus, collaborative forum shopping cannot be ruled out. While unilateral forum shopping is probably more likely and in a sense more objectionable insofar as an individual litigant's interests are prejudiced, collaborative forum shopping undermines State policy and can create a ‘two-tier’ divorce system whereby the wealthy (with ready access to legal advice and with the means to obtain a second home abroad) can divorce quickly, while the less well-off must wait.Footnote 115
Commentators have also pointed out that forum shopping requires litigators, or at least their legal advisors, to have a detailed knowledge of other legal systems.Footnote 116 It is true that the inaccessibility and complexity of another legal system may deter a would-be forum shopper; however, family lawyers are becoming increasingly conscious of the competing advantages of different fora,Footnote 117 and indeed much of this information is creeping into the layman's consciousness. The Miller and McFarlane casesFootnote 118 on financial provision made newspaper headlines, emphasizing the generosity of the English system.Footnote 119 In 2007, the Economist and New Statesman magazines ran articles comparing the financial implications of divorce in different jurisdictions.Footnote 120 Thus, the knowledge-gap, if one existed, is gradually being bridged by the popular media and by practitioners (with some lawyers advertising their specialty in this field, and explaining the benefits of international legal advice on their websites).Footnote 121
3. Conclusion
It seems very likely that forum shopping is a real problem. In the past, the English and Irish courts could respond to such practices by declining jurisdiction,Footnote 122 by hearing a case notwithstanding a lis pendens,Footnote 123 or by refusing recognition to the foreign divorce.Footnote 124 These control mechanisms have been significantly curtailed by Brussels II and Brussels IIbis.Footnote 125 Of course, other Member States are also likely to be affected by forum shopping; however, most continental states may continue to apply lex causae rules in an attempt to mitigate its effects. England and Ireland are also likely to be particularly affected by forum shopping insofar as England has an especial reputation for very generous financial awards,Footnote 126 and Ireland has very restrictive requirements for divorce. Insofar as the Commission has proposed to tackle forum shopping with harmonized lex causae rules,Footnote 127 further systematic incompatibilities arise from an English and Irish perspective. Presumably recognizing that divorce matters are usually heard in lower courts where lists are long and many parties have limited means, the Commission suggested that the presiding judge could investigate the content of the applicable law himself, using the European Judicial Network website.Footnote 128 While such investigation may be standard practice in many continental states,Footnote 129 this suggested approach sits very uncomfortably alongside the fundamental conception of the judge's role in an ‘adversarial’ common law context.Footnote 130 Insofar as foreign law is applied in other kinds of litigation in England and Ireland (usually commercial), it is required to be proven by the testimony of expert witnesses put forward (and paid for) by individual litigants.Footnote 131 The introduction of the Rome III applicable law rules would therefore have had very significant budgetary implications, both for individual litigants, and for the exchequer, insofar as divorce litigants are often funded by legal aid.Footnote 132 Furthermore, from an Irish perspective, the 2006 Rome III proposal offered no solution to the issue of collaborative forum shopping; in fact, it would have exacerbated the problem insofar as litigants would have been allowed to confer jurisdiction by consent (within certain limits)Footnote 133 and to choose the lex fori.Footnote 134 In addition, while lex causae rules undoubtedly have some inhibitive effect on unilateral forum shopping,Footnote 135 they provide no redress for the physical inconvenience and hardship that can attend litigation in an unfamiliar forum.Footnote 136 The lex causae solution is also inadequate insofar as the culture and procedures of the foreign court inevitably intrude and affect the application of substantive law.Footnote 137 In short, a forum does not cease to be an inappropriate or unfair forum just because the foreign court is purporting to apply an appropriate law.
D. Fragmentation and Misalignment of Private International Law Rules Affecting the Family
Aside from the difficulties with forum shopping, the EU's interventions are also open to criticism for disturbing the systemic-cohesion of family private international law in other ways. The EU legislation has created a multi-layered legal structure and in many instances, the interlocking of those layers remains very unclear. Particular difficulties have arisen in determining the impact of this new ‘European’ structure on outward-facing cases (having connections to third countries). For example, for many years, there was some uncertainty as to whether the harmonized jurisdictional rules of Brussels II and Brussels IIbis even applied to divorce proceedings where the respondent was a third-country national, resident and domiciled outside the EU.Footnote 138 This issue has now been resolved by the ECJ's judgment in Sundelind Lopez v Lopez Lizaro Footnote 139 but other related questions remain unanswered. For instance, following the Brussels I Convention case of Owusu v Jackson,Footnote 140 there is considerable doubt as to the appropriate Member-State response where, at the time of institution of divorce proceedings, parallel proceedings are already underway in a third country.Footnote 141 There is also a lack of clarity as to the territorial scope of the Brussels IIbis Regulation in parental responsibility disputes involving a child habitually resident in a third-country, and this question has recently given rise to conflicting views in the English context in Re I (A Child).Footnote 142 Problems have also arisen in determining the impact (if any) of Brussels IIbis in cases which are internal to a multi-jurisdictional Member State.Footnote 143 As a Title IV measure, Brussels IIbis should only apply in a case ‘having cross-border implications’;Footnote 144 however, article 66 of Brussels IIbis provides that individual territorial units within multi-jurisdictional Member States are to be treated as Member States for certain purposes. In this context, at least one court has assumed that the parental responsibility provisions of Brussels IIbis have internal application.Footnote 145 As a multi-jurisdictional Member State with many residents from third countries (particularly Commonwealth countries),Footnote 146 these inter-systemic problems cause particular difficulty in the United Kingdom.
Even where the interoperability of the legal regimes can be established, litigants are often exposed to a mesh of rules which lack any internal consistency or overarching policy. For instance, as Mostyn pointed out in an early article on the Brussels II Regulation, where a pre-nuptial agreement contains a choice-of-court clause, that clause will be automatically inoperative as regards the divorce itself (under Brussels II and Brussels IIbis), automatically binding as regards maintenance (provided the relatively lenient and commercially-oriented requirements of Brussels I are met) and at the mercy of domestic law as regards other financial matters falling outside the Brussels I concept of maintenance.Footnote 147 Differences between the jurisdictional bases laid down in Brussels I, Brussels IIbis and national law, can also result in the allocation of different parts of closely related family proceedings to different Member States.Footnote 148 In such cases, the court seised of the maintenance action may only stay proceedings to facilitate consolidation if it was second-seised; if it happened to be first-seised, Article 28 of the Brussels I Regulation does not apply.Footnote 149 Such are the complexities of the interrelationship of Brussels I and Brussels IIbis in family law matters that even judges have fallen into error in attempting to apply the two regimes concurrently, in some cases purporting to apply the wrong Regulation.Footnote 150
E. Miscellaneous Other Examples of Systemic Incompatibility
There are numerous other examples of a lack of ‘fit’ between Brussels IIbis and other related rules and policies of domestic and EU law. The Regulation is often criticized for encouraging a race to court on account of the concurrent availability of a wide array of matrimonial jurisdictional bases, alongside a strict lis pendens rule.Footnote 151 This can have the effect of undermining domesticFootnote 152 and EUFootnote 153 attempts to encourage mediation and non-contentious solutions to marriage breakdown. Another anomaly can arise insofar as article 3 Brussels IIbis intends to give priority or a ‘head-start’ to certain divorce jurisdictions. There is no mandatory residence period where proceedings are initiated in the jurisdiction of common habitual residenceFootnote 154 or of common domicile/nationality,Footnote 155 or in the agreedFootnote 156 or last common jurisdictionFootnote 157 where one spouse still resides, or in the respondent's habitual residence,Footnote 158 while the petitioner must comply with certain minimum periods of residence where he wishes to proceed (in the absence of agreement) in a forum to which only he is connected.Footnote 159 This curtailment of forum actoris is commendable but in practice the intended ‘head-start’ can be thwarted by differences in the applicable substantive laws, some of which may impose a minimum separation period,Footnote 160 thus blocking the use of the head-start. From an English and Irish perspective, it is also problematic that the EU measures (including the Brussels I Regulation, the Maintenance Regulation and any future matrimonial property instrument) are premised on a conceptual division between ‘maintenance’ and ‘matrimonial property’ which is orthodox in many civil law systems, but alien to English and Irish ancillary relief law.Footnote 161
F. Conclusion
In English and Irish law, the EU measures have damaged family private international law as a coherent discipline.Footnote 162 EU harmonization has increased the risk of forum shopping in divorce matters, whilst simultaneously curtailing the traditional common law controls. In some cases, domestic policy has been undermined by the EU measures. However, it should be acknowledged that, in certain respects, these problems with systemic-cohesion are not as acute as they were,Footnote 163 and that the situation is likely to improve further. For example, when the Maintenance Regulation comes into force, courts seised of parental responsibility matters will have accessory child-maintenance jurisdiction,Footnote 164 thus avoiding some existing problems with fragmentation of jurisdiction. If an instrument on matrimonial property is adopted, it is likely to bring a better alignment of jurisdictional rules,Footnote 165 and possibly also a discretionary transfer mechanism.Footnote 166 In a recent Green Paper on the Review of the Brussels I Regulation,Footnote 167 the Commission has suggested amending the Regulation so that a stay could be granted in the event of a lis pendens in a third country.Footnote 168 In the event that such a proposal were adopted in the Brussels I context, it is likely that Brussels IIbis would be similarly amended following the 2012 review.Footnote 169 The EU legislature has also recently adopted a Regulation (Regulation 664/2009Footnote 170) facilitating the conclusion of agreements between Member States and third-countries in the subject-areas covered by Brussels IIbis and the Maintenance Regulation (with Commission approval). The Commission has also (informally) committed itself to resolving the problems with internal application and the interpretation of Article 66 of Brussels IIbis.Footnote 171 However, even with these (prospective) improvements, many of the existing incompatibilities will continue to fester (for example, the intractable policy conflict between Brussels IIbis and the Irish constitutional divorce provisions).
IV. QUALITY OF LEGISLATION
The quality and clarity of drafting of Brussels II was criticized by BritishFootnote 172 and continentalFootnote 173 lawyers alike. One might have expected that any pre-existing problems would have been ironed out in replacing Regulation 1347/2000 with Regulation 2201/2003; however, many of the pre-existing problems remained, and indeed new drafting errors were made. For instance, the error in the English language text of article 8(2) of Regulation 1347/2000 was carried over into article 7(2) of Regulation 2201/2003.Footnote 174 Insofar as article 24(2) of Regulation 1347/2000 erroneously referred to the refusal of recognition for ‘one of the reasons specified’ in article 17 (which did not in fact specify any reasons for refusal), this error was carried over into article 31(2) of Regulation 2201/2003 (insofar as it refers to article 24). As noted by de Boer, Regulation 1347/2000 was also unclear on the construction of ‘nationality’ in cases of dual nationality and on the meaning of ‘acceptance’ of jurisdiction.Footnote 175 While a more elaborate formulation was used in respect of the latter in Regulation 2201/2003,Footnote 176 no clarification was attempted in respect of the nationality question, and both matters have since given rise to protracted litigation.Footnote 177 The ‘new’ provisions of Regulation 2201/2003 (not carried over from Regulation 1347/2000) have also been criticized—for failing to properly allocate the burden of proof in relation to ‘adequate arrangements’ (article 11(4)),Footnote 178 and for the opaqueness of the procedures preceding a second hearing by the court of origin in child abduction cases (article 11(6)–(8)).Footnote 179 Apart from ‘new’ drafting errors and the carrying over of pre-existing errors, in some instances, matters which were reasonably clear under Regulation 1347/2000 became fraught with uncertainty under Regulation 2201/2003. For example, Regulation 1347/2000 provided that while ‘purely’ religious proceedings were outside of its scope (Recital (9)), ‘officially recognised’ proceedings would be considered equivalent to judicial proceedings (article 1(2)). Neither of these provisions was carried over into Regulation 2201/2003 creating doubt as to Member State obligations with regard to religious divorces obtained in another Member State (for example, in Thrace, Greece where religious divorce is sanctioned by law).Footnote 180 Similarly, while it was clear that the reference to ‘assets’ in article 12 of Regulation 1347/2000 allowed provisional, including protective, measures to extend beyond the material scope of that Regulation, the use of the exact same formulation in article 20(1) of Regulation 2201/2003 does not necessarily carry such an implication insofar as the general substantive scope of the later Regulation covers a child's property (article 1(2)(e)).Footnote 181
In Ireland, Regulations 1347/2000 and 2201/2003 superseded laws which were in themselves uncertain and highly fragmented,Footnote 182 and to that extent, the EU legislature could not be charged with bringing disharmony where there had been order. Similarly, in the child law context in England, the preceding rules had been widely condemned for their complexity and inaccessibilityFootnote 183 so Brussels II and Brussels IIbis were hardly more problematic than that which they replaced. However, in the field of matrimonial conflicts in England, a great deal of time and energy had been invested in the creation of good-quality legislation. The Domicile and Matrimonial Proceedings Act 1973 and Part II of the Family Law Act 1986 had been carefully crafted and fine-tuned with the assistance of Law Commission reports.Footnote 184 In that context, at least, it was very much to be regretted that the fruits of so much domestic labour had to be jettisoned in favour of a substitute regime which was not of equal quality.
Various explanations can be offered for the poor quality drafting of Brussels II and Brussels IIbis. Some point to insufficient public debate,Footnote 185 insufficient contribution from national parliamentsFootnote 186 and insufficient consultation with practitioners.Footnote 187 Another possible explanation is the paucity of academic debate. McGlynn points out that Brussels II was adopted in a context of intellectual isolation, falling outside the traditional ‘furrows’ ploughed by EU law specialists and family law scholars.Footnote 188 However, de Boer contends that there was in any event an institutional unwillingness to pay attention to available academic legal literature.Footnote 189 McEleavy suggests that the poor drafting of Brussels II and Brussels IIbis may be attributed to a rushed negotiating process, where complex legal concepts are misunderstood and lost in translation, and where compromises are brokered by reference to unrelated, and politically more important, matters.Footnote 190 The Commission has since acknowledged the need to improve legislative quality,Footnote 191 and in its more recent family law measures, has consulted widely, holding public meetings and inviting written submissions,Footnote 192 and commissioning detailed impact assessments and studies of proposed legislation.Footnote 193 The Commission has also begun to issue ‘Practice Guides’ to assist in the implementation of EU Regulations;Footnote 194 however, it is noteworthy that the Brussels IIbis Practice Guide focuses almost exclusively on parental responsibility matters, and the Guide is of very limited use in the interpretation of the divorce provisions.
V. LOSS OF CONTROL OVER, AND DAMAGE TO, RELATIONS WITH THIRD COUNTRIES
As has already been noted, third country relationships are of particular concern to the United Kingdom because of its Commonwealth connections.Footnote 195 Respect for these relationships and for the ‘comity of courts’ was given expression through the doctrine of forum non conveniens—however, as a result of the Owusu case, such doctrine may no longer be applicable (at least where jurisdiction is taken on Regulation grounds).Footnote 196 Brussels II and Brussels IIbis also had significant indirect effect on British (and Irish) relations with third states insofar as the ‘Lugano Opinion’Footnote 197 has since confirmed that the adoption of a Regulation on jurisdiction and recognition entails an automatic ceding of exclusive external competence, even in matters generally left to national law under the Regulation.Footnote 198 Of course, as indicated above,Footnote 199 the EU legislature has now provided a framework within which Member States may enter into agreements with third countries; however, Regulation 664/2009 emphasizes the Commission's overarching control—and the United Kingdom and Ireland (like other Member States) have lost the independence they once enjoyed in concluding bilateral and multilateral agreements.
In substantive terms, Brussels II and Brussels IIbis are also likely to have had a negative effect on relations with third countries. The Regulations treated third-country nationals very harshly, particularly those residing outside of the EU. Not only are non-resident third-country nationals exposed to the invocation of exorbitant national-law bases of divorce jurisdictionFootnote 200 (against which Member State nationals are protected),Footnote 201 they are also exposed to the extension of those grounds in favour of all EU nationals (under article 7(2)).Footnote 202 Beaumont describes these provisions as ‘a serious affront to all States outwith the Union’ and suggests that they are ‘likely to provoke adverse reaction’ in third countries.Footnote 203 Article 14 of Regulation 2201/2003 also allows for the residual application of national rules in parental responsibility matters. As McEleavy points out, this would allow a parent of a New York resident child to rely on his French nationality to obtain a French court order which would then be enforceable in all Member States.Footnote 204 Third-country nationals habitually resident in a Member State are not vulnerable to exorbitant divorce jurisdiction;Footnote 205 however, in certain respects they are treated less favourably than Member State nationals. They have a narrower array of jurisdictional grounds available to them if they wish to obtain a divorce within the EU, insofar as nationality-based grounds will be inapplicableFootnote 206 and they are not entitled to benefit from the article 7(2) extension of exorbitant grounds in the Member State of habitual residence.Footnote 207
While third country spouses of British and Irish nationals may find themselves exposed to long-arm jurisdiction based on the petitioner's domicile,Footnote 208 and while British and Irish nationals may still avail of unfair exorbitant grounds in other Member States (under article 7(2)), in general, the unfair treatment of third-country nationals is actually less severe in the English and Irish contexts than in continental jurisdictions. This results from the use of ‘domicile’ instead of ‘nationality’ under article 3 Brussels IIbis and as a residual jurisdictional ground. Resident third-country nationals may acquire an English or Irish domicile and thus may be able to invoke domicile as a jurisdictional base in the same way as British and Irish nationals. Also, insofar as domicile does not seem to lend itself to an article 7(2) extension, there is less scope for unfair exorbitant jurisdiction against non-resident third-country nationals under Brussels IIbis as it applies in England and Ireland.Footnote 209
The EU incursion into family private international law, and its emphasis on regional harmonization, may also have damaged the general development of international cooperation in this arena. Certainly there was a perception that the standing of the Hague Conference may have been undermined by the EU's activities.Footnote 210 Many commentators took the view that the careful, consensus-based approach of the Hague Conference is in many respects superior to the European approach and were concerned that it was being sidelined.Footnote 211 The value of European integration must be questioned if it is achieved at the expense of wider-scale global integration.Footnote 212
In conclusion, Brussels II and Brussels IIbis took a very insular approach, which was potentially damaging to international cooperation, and at odds with the internationalist spirit of private international law.Footnote 213 However, in this context too, there appears to have been a change of heart more recently, and the terms of the Maintenance RegulationFootnote 214 suggest a much greater commitment to wider global cooperation on the part of the EU legislature. The Maintenance Regulation does not allow exorbitant national rules to apply residually. Instead, it provides for subsidiary jurisdiction based on common nationality (article 6) and in the absence of common nationality, a forum necessitatis clause allows a Member State court to take jurisdiction, but only ‘on an exceptional basis … if proceedings cannot reasonably be brought or conducted or would be impossible in a third State with which the dispute is closely connected’ (article 7). Additionally, while the original proposal had laid down separate (EU) applicable law rules,Footnote 215 the final text simply refers to the 2007 Hague Protocol on law applicable to maintenance, and provides that the applicable law shall be determined in accordance with the Protocol in the Member States bound by that instrument (article 15). The preamble to the Maintenance Regulation also refers to the ‘taking into account’ of (Recital (8)), and the desirability of ensuring ‘proper symmetry’ with (Recital (17)), the 2007 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance.Footnote 216 Recent EU publications also emphasize the valuable role of the Hague Conference, the importance of effective cooperation with third countries and the need for coherence as between EU rules on civil justice and multilateral international agreements.Footnote 217
VI. LOOKING TO THE FUTURE
The EU legislature is unlikely to repeat some of the mistakes made in the adoption of Brussels II and Brussels IIbis. Future family law measures are likely to be based on wider consultation and to be better drafted.Footnote 218 It is unlikely that such measures will be so overtly hostile to third country interests.Footnote 219 Greater efforts will be made to accommodate international norms developed at the Hague Conference,Footnote 220 and as the EU's coverage of family law becomes more complete and less piecemeal, it is likely that there will be better alignment as between the different instruments.Footnote 221 Many of the existing criticisms of the drafting of Brussels IIbis may well be addressed by the 2012 review.Footnote 222 However, even with all of these improvements, many difficulties will remain. The parallel operation of regional and international instruments (alongside a third—if diminishing—block of national law) is necessarily problematic.Footnote 223 Even where the regional instruments are heavily influenced by the text of the international instruments, small differences in wording are likely to be treacherous.Footnote 224 The United Kingdom and Ireland will be faced with a difficult choice in deciding whether to opt into the remaining measures: in opting out at this stage, the British and Irish governments may find themselves with a half-constructed edifice which is more problematic in its incompleteness than the whole which is the result of a complete harmonization programme. However, ‘opting in’ is likely to give rise to further systematic incompatibilities (as, for example, with the application of foreign law).
More fundamentally, the planned abolition of exequatur Footnote 225 and (possible) plans for harmonization of substantive lawFootnote 226 are likely to exacerbate existing policy conflicts as between Member States.
Those who are sympathetic to such measures emphasize that family law convergence is occurring anyway, spontaneously and through the jurisprudence of the European Court of Human Rights.Footnote 227 CEFL contributors have challenged the view that family law is uniquely ill-suited to substantive harmonization, arguing that in fact it is in some respects more suited to harmonization than other aspects of private law because of the canon law roots which underpin the law throughout Europe, both in common law and civil law states.Footnote 228 They point out that the common law did not develop unique principles in the sphere of substantive family law, as it did in other areas of private law.Footnote 229 Proponents of harmonization emphasize the efficiencies of simplification.Footnote 230 It has also been pointed out that there is a natural tendency towards uncritical opposition to changeFootnote 231 (lawyers will often favour the status quo as a knee-jerk reaction).Footnote 232
While there is merit in these arguments, the underlying reality is that divorce and other family laws, much more than most other laws, tend to express a fundamental world-view.Footnote 233 Martin and Théry provide a useful illustration of this idea in outlining opposing French views on liberalization of family law.Footnote 234 They say that for some the new laws were seen as ‘a symptom of decline, decadence, individualism, egotism’, by others as representing ‘a cultural emancipation, more freedom and social tolerance’.Footnote 235 Differing value-systems have resulted in fundamentally different family laws in different Member States. Divorce is prohibited in Malta, is subject to lengthy waiting periods in Ireland and Italy, and is available on demand in Sweden and Finland.Footnote 236 Spousal maintenance is viewed as a short-term support in some Member States (Sweden), while life-long maintenance is contemplated in others (Germany).Footnote 237 These practices reflect different attitudes towards gender-equality and labour market participation, and indeed fundamental differences in social welfare provision.Footnote 238 Thus, while there may not be a trenchant common law/civil law divide in the area of substantive family law, and while legal systems may have converged to some extent,Footnote 239 many aspects of Member States' family laws are informed by very fundamental policy differences,Footnote 240 and are conditioned by local welfare, taxation and labour policies, as well as by religious values.Footnote 241 As Bradley points out, family law is a component of the political economy of each Member State and should be understood within that context.Footnote 242 Of course, it might be argued that the same is true of aspects of tort law, contract law and property law (and that family law is not really a case apart); however, these other areas of private law are much more directly involved in the regulation of the internal market, and on that basis alone, EU intervention is more readily justified.Footnote 243 Indeed, the characterization of family law as private law is very much open to challenge.Footnote 244 Family law is not just concerned with the regulation of domestic relationships inter se.Footnote 245 It is also centrally focussed on the wider protection of State interests.Footnote 246
Insofar as the first CEFL report covered inter alia ‘grounds for divorce’,Footnote 247 it is noteworthy that this is an issue of law which was referred to national referendum in Italy in 1972 and in Ireland in 1986 and 1995.Footnote 248 It would be astonishing if the EU legislature, with its lesser claim to democratic legitimacy,Footnote 249 should consider itself competent to embark on a harmonization programme in a field where some national governments felt they required the prior consent of the people. In the United Kingdom, these same sensitivities are reflected in the fact that divorce matters have generally been left to a free vote in Parliament.Footnote 250 In fact, it might be argued that if the EU legislature embarks on substantive harmonization, it will venture into this value-laden and intensely politicalFootnote 251 sphere at its own peril: it may jeopardize its own institutional legitimacy insofar as this requires some semblance of ideological neutrality.Footnote 252
While the harmonization of substantive family law is particularly problematic, the abolition of exequatur may also create difficulties for individual Member States. As things stand, a national court is entitled to refuse recognition as a matter of public policyFootnote 253 where another Member State judgment is ‘at variance to an unacceptable degree’ with the internal legal order of that state.Footnote 254 There will no longer be any opportunity to refuse recognition on this basis if exequatur is abolished.
Of course, family law measures have required unanimity under article 67(5) EC, and this remains the case under the Treaty of Lisbon.Footnote 255 Therefore, in a sense, individual Member States have the power to halt this intensification of European family law.Footnote 256 However, it has often been acknowledged that the EU policies have their own synergy and momentum,Footnote 257 and that Member States are under considerable pressure to support proposed measures.Footnote 258 A Member State objection often comes at a cost.Footnote 259 Therefore, in practice, national governments are often reluctant to exercise their right of veto even if there is a sense that the measure in question is not necessarily in the interests of the Member State.
VII. CONCLUDING OBSERVATIONS
The indirect influence of Brussels II is very significant—and in hindsight it is apparent that the decision to ‘opt into’ Regulation 1347/2000 was a momentous one for the British and Irish governments. Brussels II laid the foundations for a much wider ‘Europeanization’ of family law. In agreeing to Brussels II, the British and Irish governments also ceded much of their control in regulating international (non-EU) status matters. Brussels II and Brussels IIbis have disturbed the orderliness of English law (in terms of coherent legal frameworks and precise legislative drafting) in particular in the sphere of matrimonial causes. Brussels II and Brussels IIbis have also provided fertile ground for forum shopping in divorce matters (with particular consequences for English and Irish law). In Ireland, the adoption of Brussels II has also resulted in mutually inconsistent divorce laws: the relative liberalism of Brussels IIbis clashes with the relative conservatism of the national constitutional provisions, and the two sit very uncomfortably alongside one another.
Of course, EU harmonization has also conferred some benefits in the English and Irish contexts. The standard procedures for recognition of parental responsibility orders under Brussels IIbis are perceived to be an improvement upon the system offered by the Luxembourg Convention.Footnote 260 British and Irish nationals who divorce whilst living elsewhere in Europe, will enjoy greater certainty and consistency regarding their civil status under English and Irish law. This is particularly true in Ireland where the old law of recognition was restrictive, complex and uncertain in scope.Footnote 261 Equally, those who obtain an English or Irish divorce will enjoy consistent recognition if they choose to live elsewhere in Europe.Footnote 262 While these advantages are not insignificant, other Member States are likely to have reaped greater benefits. For example, in Germany, Brussels II and Brussels IIbis provided a solution to an acknowledged problem with parallel French proceedings and French non-recognition of certain German divorces.Footnote 263 Brussels II and Brussels IIbis are also of particular benefit in those jurisdictions with a tradition of maintaining civil status records,Footnote 264 and requiring those divorced abroad to go through a special recognition procedure.Footnote 265 In that context, Brussels II and Brussels IIbis provided an immediate simplification of bureaucracy.Footnote 266 This very tangible benefit did not extend to England and Ireland where there has never been an equivalent process.Footnote 267 If Germany and other continental jurisdictions accrued greater benefits under Brussels II and Brussels IIbis, the new system came at a lesser cost. The Brussels system is largely reflective of Romano-Germanic tradition.Footnote 268 Many of the continental states already applied an automatic lis pendens doctrineFootnote 269 and used lex causae rules to tackle forum shopping.Footnote 270 As common law jurisdictions, accustomed to applying the lex fori in family law matters, and accustomed to the use of judicial discretion in controlling forum shopping, England and Ireland have had to make much greater adjustments to accommodate the EU family law programme. In hindsight, it is apparent that the benefits of simplification may be too marginal and the price of harmonization too high.
