Rabat (Morocco), July Mixed Marriages - Jurisdiction and Applicable Law

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1 EuroMed Justice, 5 th Conference: International Judicial Cooperation in the field of family law. Rabat (Morocco), July 2007 Mixed Marriages - Jurisdiction and Applicable Law Lord Justice Thorpe, Head of International Family Justice for England and Wales The Mixed Marriage For the purposes of this paper I take a mixed marriage to be a marriage between a man and a woman of different nationalities with resulting differences, to a greater or lesser degree, in traditions, culture, language, education and religion. The European Commission in a recent publication suggests that 16% of marriages celebrated in Europe fall into this category. Whether this statistic is reliable or not is, for me, a matter of small importance since no-one can have failed to notice that the world which we share is becoming increasingly diverse, increasingly less a string of tightly bound nation states. The ever increasing mobility of people, some exercising choice, some pursuing ambitions, some the victims of inhuman treatment, some economic migrants, guarantees the proliferation of mixed marriages. Nor can we ignore the reality that these very differences operate to increase the likelihood that the understanding and aspiration that created the marriage will dissolve in the wake of breakdown. Then each spouse will lean towards the legal system of the homeland. The resolution of such conflicts and the desire to avoid competing proceedings in different jurisdictions, in turn risking conflicting orders, have been a major objective of law makers within the European Union. Jurisdiction This has not been easy work for the law makers. Great difficulties are presented by the existence within Europe of two great and very different systems of law. Civil law systems have one solution to the problem created by the mismatch between the domestic law and the litigants. Common law systems have a different solution to the same problem. Civil law systems traditionally apply in such cases, not the domestic law, but the law of the country July

2 with which the parties have the closest connection. In the common law jurisdictions in family law (but not in civil or commercial) the court applies only domestic law, the lex fori. If it be demonstrated that the court of some other jurisdiction would provide the parties with a more convenient and fairer trial then the common law court will defer to the foreign jurisdiction, suspending the exercise of its own jurisdiction pending the outcome of proceedings in the more convenient court. European law is fashioned by a process of negotiation between the member states. Neither the civil law states nor the common law states have been ready to cede their traditional positions. In the field of divorce, including its consequences, we have seen provisions for the enforcement of maintenance (the Brussels Convention, now the Regulation Brussels I) and, of greater importance the Regulations to determine jurisdiction to dissolve marriage. The relevant provisions were contained in the Regulation Brussels II which quickly evolved, without amendment in this regard, into the current Regulation Brussels II revised. The solution adopted by these Regulations was to define comparatively wide foundations for jurisdiction without prioritisation. In the event of the issue of proceedings in more than one state satisfying one of the widely drawn jurisdictional criteria, the state first seized proceeds and the state second seized defers. This solution has been widely criticised, particularly by the common law jurisdictions. It is suggested that the mechanism encourages a rush to court, jeopardising the prospects of conciliation or mediation. It is characterised as a crude solution less likely to produce justice than the search for the more convenient court (forum conveniens) preferred by the common law states. These arguments are recognised as valid by the EU papers preparing the way for a further Regulation, Rome III, to which I will come. Applicable Law So much for jurisdiction: the view of the European Commission, and of many jurists within the civil law jurisdictions, was that any problems created could be solved by the creation of a new Regulation to deal with the law to be applied in the court of primary jurisdiction. The need for such a law was seen to stem from the wide diversion in the divorce laws of an July

3 enlarged Europe. At one extreme stands Malta, one of only two jurisdictions left in the world that do not countenance divorce. At the other extreme are Scandinavian states, such as Finland, which permit consensual divorce soon after separation. Thus the proponents of an applicable law regime point to the hypothetical case of a Polish husband who takes employment in Finland and, after 6 months of residence, invokes the Finnish law to dispose of his left behind wife. Polish divorce laws are highly restrictive and would operate to protect the party resistant to divorce from summary dissolution. Another example taken is of the Finnish couple over whom the Republic of Ireland acquires jurisdiction in consequence of their relatively short term residence in the Republic. Proceedings first issued in Ireland would preclude swift divorce under the law of their homeland. It is easier to see that the nature of the divorce law in most European jurisdictions is dictated by the religious traditions of the people. Malta, Poland and Ireland have been, and to some extent remain, jurisdictions in which the Roman Catholic Church has had much power and influence. The reverse is true of the Scandinavian states. Thus it was that in July 2006 the European Commission published a regulation to settle Rules governing the law to be applied by the court exercising jurisdiction in accordance with Brussels II revised. None of these Regulations apply to Denmark and in relation to the proposed Regulation both the United Kingdom and the Republic of Ireland exercised their election not to participate in the negotiation of the Regulation. Although this election does not preclude the UK and Ireland from accepting the Regulation in its ultimate form, the election not to enter the negotiation is a strong indication of an intention not to be bound by whatever emerges. Thus if an applicable law Regulation results it is likely to bind only 24 of the 27 member states. I lay emphasis on the word if in the previous sentence since reports of the negotiations to date indicate wide areas of disagreement between the negotiating states. Rome IV? A further regulation is on the horizon and may ultimately emerge as Rome IV. In July 2006 the European Commission also published a Green Paper on the harmonisation of marital property regimes within the European Union. This is an important legal area for an affluent family. The more affluent the more important the issue becomes. Brussels I deals only with maintenance. Brussels II revised, does not deal with either maintenance or the property consequences of divorce. In most civilian states the property consequences of divorce will be determined by a marital property regime in the form of a notarised contract made in anticipation of marriage. In the common law systems marital property regimes are unknown July

4 and the property consequences of divorce are dealt with only at the stage of divorce and by the exercise of a wide judicial discretion. These highly divergent systems are difficult to reconcile. What are the property consequences of divorce? Essentially they comprise the division of income and assets over and above such income and assets as are necessary for the maintenance of the spouses and the children of the marriage. The responses to the Green Paper were invited by a date in November The ambivalence of the United Kingdom to this enterprise is indicated by the fact that our response has yet to be filed. The applicable law provisions in relation to both divorce and property consequences of marriage are not restricted to the laws of the member states of Europe. Thus if a Saudi couple or a Japanese couple were involved in divorce litigation in London, the London court would be obliged to apply the law of Saudi or Japan respectively. Where does this leave the relationship between the EU and the non EU Mediterranean states? As things are at present my understanding is that the principal civil law jurisdictions of Europe already apply and will continue to apply the law applicable to the parties, which in many cases will not be the lex fori. Thus a Turkish family long resident in Germany may expect the German court to apply the law of Turkey to their divorce and to its consequences. Similarly we have recently had in London the case of Moore and Moore involving competing proceedings between very rich spouses in London and Marbella. The Spanish court decided that, if it were to exercise jurisdiction in relation to the property consequences of the marriage, it would apply English law, since the spouses clearly had a much stronger connection with our jurisdiction. As far as the common law states are concerned we do not, and will not in the foreseeable future, apply foreign law in any case in which we have assumed primary jurisdiction. However, we will continue to defer to some other jurisdiction if it be shown that the balance of fairness and convenience points to that course. For example, take a Nigerian couple of huge wealth who have maintained a London home for some years, using English services for the education of the children and to meet the medical needs of the family. The periods of the wife s residence in London commonly suffice to confer jurisdiction upon London. However in such a case it is not unusual for the London judge to decide, in the exercise of a broad discretion, that on the balance of fairness and convenience the divorce and all ancillary matters should be determined in Nigeria. July

5 Customary or Religious Courts for Minority Communities I turn now to consider whether as an alternative to the application of foreign law the United Kingdom might permit discreet communities to conduct marriage and divorce according to their particular rights and customs. For example, the Jewish community has been established in the United Kingdom for hundreds of years and personal law can be submitted to the religious court for determination. But those determinations are effective only within the community and do not have affect according to the law of the land. A get pronounced by the Beth Din does not change the status of the parties any more than a Catholic marriage annulment according to Canon Law or a Talak divorce according to Shari a Law. The Muslim communities within the United Kingdom are very numerous. There are over two million Muslims, most of them Sunnis whose families originated in the Indian sub-continent: (figure given in Daily Telegraph of 4 July 2007). Under British rule the personal law of the community to which a citizen belonged was always respected and upheld. Thus it is argued if the British applied Muslim law to Muslims in India prior to 1947 why should we not apply Muslim law to their descendants now resident in the United Kingdom? What in principle is unacceptable to such a concession, recognising the extent of the contribution that the Muslim communities make to the strength and well being of the nation? The answers to such arguments lie both in principle and practicalities. As a matter of principle we must begin with history. For centuries when there was little or no diversity within the population of the United Kingdom the law of marriage and divorce was made and administered by the ecclesiastical courts of the established Church of England. It was only in the 1830 s that Parliament permitted our people to contract a valid marriage by a civil ceremony in a Register Office. It was in 1857 that Parliament created a secular regime of divorce to be achieved by proceedings in the Queen Courts. Ever since that introduction those courts have applied to both marriage and divorce only the lex fori. It is my opinion that Parliament would be exceptionally unlikely to depart from such a deep seated tradition. As to practicalities where would the line be drawn? There are very many communities identifiable by their religious practice. To admit to each the right to alter status on the application of law or custom particular to the community would create unmanageable plurality and complex disputes, the resolution of which would probably require contested expert evidence. July

6 Further there are already statutory provisions to avoid the necessity for such communities to duplicate the marriage in their place of worship with a civil ceremony in a Register Office. Section 26(1)(a) of the Marriage Act 1949 affords to a religious marriage immediate legal effect provided it is conducted in a registered building according such form and ceremony as the persons married sees fit to adopt. This widely drawn provision is there for any religious minority to embrace. All that is necessary is that the Mosque, Church, Synagogue or Temple must be duly registered. Registration is neither a complex nor arduous procedure. There is also a remedy to avoid the limping divorce, by which pronounced in the civil courts but not replicated by a religious divorce. The Divorce (Religious Marriages) Act 2003 was brought on to the statute book to resolve this very problem within the Jewish community. But it is capable of extension to provide the same relief to any other prescribed religious usages. To be prescribed there must be an order of the Lord Chancellor in the form of a statutory instrument. I see no reason why such a statutory instrument should not be made to extend the benefits of the Act to our Muslim communities. July