Response to the EU Green Paper on Divorce

Transcription

1 Response of Resolution to the EU Green Paper on Applicable Law and Jurisdiction in Divorce Matters (Rome III) Summary of our proposals 1. Introduction of a hierarchy of criteria for the basis of jurisdiction for divorce etc (hierarchy to be decided following consideration). (See paragraph 13). 2. The ability to choose jurisdiction (and therefore law). (See paragraph 11) 3. The ability to transfer proceedings in divorce etc., in exceptional circumstances, on the basis that another country has a closer connection. (See paragraph 16 ) 4. The extension of the lex fori principle in all family proceedings in the EU and, therefore, the removal of applicable of law rules by those countries where it exists or applicable law rules that match the jurisdiction hierarchy. (See paragraph 17) 5. To consider changes to the jurisdiction in divorce matters in tandem with consideration for reform of property consequences of marriage and partnerships. (see paragraph 9) Who we are [1] Resolution (formerly known as the Solicitors Family Law Association of England and Wales) is the primary organisation of family lawyers in England and Wales. We have approximately 5,000 practising solicitors as members, who act for a wide variety of clients, arising principally from relationship breakdown. Many of our members are Resolution Response to EU Green Paper on Law on Divorce 1

2 also mediators and/or collaborative lawyers and we have a number of affiliate members including judges and academics. We practise according to a Code of Practice which promotes a constructive and non-confrontational approach and (where possible) non-court-based resolution of family disputes, prioritising the interests of children. This response has been prepared by Resolution s International Committee which has been in existence for over ten years and assists our members in understanding international issues and recommending good practice in cases which have international implications. We have a considerable number of cases with an international dimension, and such issues are now commonplace for all specialist family lawyers and for many general practitioners. As an organisation of specialist practitioners, we have closely seen the impact of EU law on our English and foreign clients and on their family. We estimate that approximately a half of our international cases concern Europe with the other half being primarily the United States and the former Commonwealth countries. We bear the latter in mind in the preparation of this response. Further details of Resolution can be found on our website: General Introduction [2] We welcome the EU consultation paper dated 14 March 2005 in relation to applicable law and jurisdiction in divorce matters as the current situation is extremely unsatisfactory. In particular, we have been vociferous in our criticism of aspects of the Brussels II Regulation (Regulation 2201/2003 as revised) and in particular the lis pendens rule. It has directly discouraged the prospect of marriage reconciliation, counselling, mediation and a conciliatory approach, all of which we are satisfied in our considerable experience of many domestic and international cases is in the interest of families, especially where there are children. In our experience, rather than trying to resolve their matrimonial difficulties with a marriage counsellor, in many cases one or both spouses are taking legal advice at a very early stage and are issuing divorce proceedings in the jurisdiction which will secure the Resolution Response to EU Green Paper on Law on Divorce 2

3 best financial outcome for them. We welcome the recognition in the Green Paper of the disadvantages and adverse implications of the rush to court under the current situation. [3] With the increasing movement of people around Europe, including the new member states, and the consequential increase of binational marriages many more international issues are arising in family law. We have seen a significant increase in this work over the past few years. Although this Green Paper deals with divorce alone, in most countries the divorce court will go on to determine financial applications including maintenance, pension sharing and the division of the family assets. In our view therefore divorce and all the ancillary financial aspects need to be seen and dealt with together. There is a huge difference in the outcome and treatment of financial aspects on divorce in family law cases around Europe. These differences and contradictions can be unfair, especially if they do not meet the parties legitimate expectations, and encourage the rush to court. We support any step to produce an overall fairer, more just system which is easier to understand by EU citizens. [4] There are essentially two ways of removing the inequities of Brussels II and limiting forum shopping: 1. have rules that mean that all, jurisdictions apply the same rules as to which jurisdiction s substantive law should be applied, for example the law of the country of the parties nationality wherever the divorce takes place or 2. have rules that determine the jurisdiction by way of hierarchy and then further determine that each jurisdiction will apply their own substantive law. [5] In theory the first solution of applying foreign substantive law may appear to have attractions. However, although it may work across jurisdictions with similar legal regimes (often arising from the same Resolution Response to EU Green Paper on Law on Divorce 3

4 legal traditions and with codified law), we have experience from many cases we have conducted where it does not work. We practise in a jurisdiction which purely applies its own domestic substantive law ( lex fori ). These rules similarly apply in all common law jurisdictions including areas of the world where there exists large communities in the UK. For the reasons set out below, we are of the firm view that English courts should continue to apply English law and we propose that the position would be clearer for lawyers and citizens throughout Europe if the outcome of any new EU rules was that courts applied their own country s substantive law, subject to other amendments to the existing Brussels II Regulation addressed below. On our proposals, this would enable clients to have a greater choice as to where the issues arising out of their separation should be resolved. We recognise that, as a common law jurisdiction which applies domestic law in determining most family issues, England may be in a minority in Europe, although certainly not alone. We are however in a majority as far as the rest of the world is concerned and as stated at paragraph 1 above we estimate that over half of our international cases actually relate to the United States and Commonwealth countries which do not apply foreign law nor have the exposure that we have of applicable law jurisdictions. We consider that, with amendments to the existing Brussels Regulation, including in relation to the prorogation of jurisdiction as set out in detail below, the situation for EU citizens would be more transparent, it would be easier to predict outcomes and would promote unity in the approach to be taken by the courts throughout the European Union. [6] In responding to the Green Paper, we first set out our concerns about the current situation and therefore by retaining the status quo (which we do not advocate), before responding to the 20 questions specifically put forward in the Green Paper. In commenting on the questions we refer, where appropriate, to specific examples dealing with European citizens as they reflect the realities of living in a 21 st Century Europe. Resolution Response to EU Green Paper on Law on Divorce 4

5 Shortcomings of Brussels II Our Proposals Rush to Court [7] We have addressed above the difficulties which have arisen in relation to the lis pendens rule. In our experience parties do not rush to court pursuant to an emotional desire to divorce in a specific member state to which they feel most attached. Instead, they issue in these circumstances for tactical reasons, following legal advice (in one or more jurisdiction) that they will be at a financial advantage to have proceedings in a particular member state as a result of the difference in outcome in the financial provision following divorce across EU states. [8] As stated at paragraph 2 above Brussels II has greatly discouraged conciliation between couples, both in relation to resolving their matrimonial difficulties and repairing their marriage but also with regard to mediation or other non-litigious forms of dispute resolution once the couple has accepted that the marriage has broke down. This rush to court flies in the face of other proposals from the EU such as the draft directive on mediation in civil and commercial matters published in October 2004, and the reference to exploring methods of alternative dispute resolution in the text of the proposed draft Constitution. It is clear to all of Resolution members in England and Wales that the lis pedens rule must be changed. [9] In relation to the actual grounds of divorce we accept that Brussels II should continue not to cover the grounds for divorce, which should remain a matter for each member state s domestic law. Brussels II also specifies that it should only apply to the dissolution of the matrimonial relationship and not the property consequences of the marriage or any other ancillary measures (including maintenance obligations, the latter of which are covered by Council Resolution Response to EU Green Paper on Law on Divorce 5

6 Regulation number 44/2001). However, in reality, as soon as the court in England and Wales has jurisdiction on divorce, separation or annulment, it can make orders for financial provision (not just limited to maintenance) but including orders for lump sum, property adjustment and pension sharing. We understand that this is also the position in the majority of, if not all, member states (unless jurisdiction can subsequently be excluded, for example as a result of an existing maintenance agreement in another jurisdiction which would involve the applicability of Council Regulation number 44/2001). Therefore, in the overwhelming majority of our cases across Europe, the forum of the divorce determines the forum of the financial case. Although this appears to be recognised in the Green Paper, it is totally artificial to consider divorce law in isolation. We note that the Green Paper on property consequences of matrimonial relations and partnerships is expected in 2006 and we strongly consider that this should be looked at in tandem with the current proposals under reply in this response. We appreciate that in a number of jurisdictions this is interlinked with inheritance law, which is the subject of separate consultations. However, we take the view that, rather than making bad new law soon, the EU should make better new law, even if it takes longer. [10] We believe that the current situation of unpredictability and inequality of outcome resulting from Brussels II is unjust, not just because it discourages a conciliatory approach between EU citizens on the breakdown of their relationship, but also as the situation can encourage a family s future being decided in a jurisdiction which is not the most appropriate or which has the closest connection but which has been secured by one party taking pre-emptive action to suit their own interests. We recognise that the decision in relation to the appropriate jurisdiction for resolving disputes in relation to the arrangements for the children has been alleviated following the revision of Brussels II, (Brussels II Bis), re-enforcing the longestablished principle, set out in the 1980 Hague Convention on Civil Aspects of International Child Abduction, that a child s future should Resolution Response to EU Green Paper on Law on Divorce 6

7 be determined in the jurisdiction where it is habitually resident. We also welcome the introduction of a prorogation of jurisdiction principles at Article 12 of the revised Brussels II Regulation in relation to children cases and the ability of a court to transfer a case to another jurisdiction better placed to hear the case, introduced at Article 15, again in relation to children cases. It can be seen by our proposals at paragraph 16 below that we propose that such provision be introduced in relation to divorce, legal separation or marriage annulment as well as in relation to matters relating to parental responsibility. Prorogation of jurisdiction [11] We propose that spouses should be able to choose the jurisdiction and the law for their marriage either before the wedding, at any time during the marriage or after the breakdown of the marriage. One major concern we have in relation to the present lis pendens rule is that there is no possibility for clients to agree a jurisdiction to determine their future. Subject to certain safeguards we support entirely the priority of agreements and the autonomy of clients. One of the biggest developments over the last few years has been the move to private ordering of personal affairs rather than the imposition of rules of laws. Parties should be able to elect what should happen to them in the future. If parties agree in writing that a jurisdiction should deal with their affairs in the future, then that should determine the matter provided they have a close connection to that jurisdiction. Even in England and Wales where clients cannot be held to the terms of a pre-marital agreement (although they provide clear evidence of the parties intentions and in certain cases have been followed by the court, especially on issues of jurisdiction), there has been a marked increase in individuals wishing to enter into a premarital agreement. Such clients include those who have international connections and wish to order their personal affairs and include some element of certainty as to what should happen in the event of marital breakdown and as to where a divorce would take place. Clients find it surprising that, because of Resolution Response to EU Green Paper on Law on Divorce 7

8 Brussels II, such agreements about jurisdiction cannot be binding, and that jurisdiction will depend on the circumstances of their situation at the time of the marriage breakdown and who simply happened to be able to issue first and so secure a significant tactical financial advantage. We accept that there needs to be a connection between the parties and the jurisdiction they choose to avoid the problem of exotic laws with which the parties have little or no connection or divorce tourism (as noted at paragraph 3.3 of the Green Paper). To avoid this we propose that a state should only have jurisdiction when there is a substantial connection, for example provided one party is habitually resident in or a national of (or for the UK and Ireland domiciled in) that member state or it is the state where the marriage took place. For the reasons set out below in relation to applicable law, we also propose that the parties can only choose the substantive domestic law of the jurisdiction they choose. [12] In relation to the conditions for an agreement, we prefer conditions similar to those applying in English law, i.e. that an agreement is only binding following independent legal advice and full and frank financial disclosure of the parties financial circumstances. However we recognise that some countries have substantially less stringent laws as to the formalities for premarital and marital agreements. Accordingly, we consider that any agreement must comply with the formalities of the member state whose jurisdiction is chosen. That way the courts invoked are best placed to decide whether the formalities have been complied with. If, after analysis, it is found that some member states are entirely lacking any rules on formality or independence of advice before entering into them, a directive may stipulate the option of either notarial agreements or independent legal advice together with some minimum standards for a fair bargain. It may be possible in such a directive to allow several options on the formalities. Resolution Response to EU Green Paper on Law on Divorce 8

9 Hierarchy of grounds of jurisdiction [13] To avoid the rush to court which currently exists it is essential for there to be a hierarchy for jurisdiction. This will avoid the difficulties, for example of a couple, whose closest connection is with Germany, finding themselves before the English courts simply because one decides to issue there and they have been resident there for a short time (cf. Re R (Abduction: Habitual Residence) [2004] 1 FLR 216). We do not consider that the problems will be alleviated by a simple extension of the grounds for jurisdiction, as suggested at paragraph 3.4 of the Green Paper. It is too narrow, does not deal with the risk of the rush to court, does not allow agreements and does not provide for member states which have the closest connection with the parties in resolving their future. We consider that a hierarchy would avoid the rush to court and provide certainty and clarity for EU member citizens. [14] We have not set out here an order of hierarchy as we believe that the general principle is important rather than arguments about the specific order of hierarchy of the grounds of jurisdiction which should be subject to separate consultation and analysis. We take the view, however, that the priority should be a written agreement between the parties as to the choice of jurisdiction. There should be further consideration as to whether nationality, (or domicile in the UK and Ireland) should take a priority over the parties joint habitual residence. We consider that there is a significant difference between second-generation foreign nationals who have lived all their lives in another country and a couple who have moved for professional reasons to a country, say for a fixed two-year period. In the latter case we consider that such couples strongly identify with their nationality and that an Italian couple, for example, living in England for a short time may expect to have to go to Italy to divorce but second-generation Italians living for example in Germany would not necessarily do so. We also recognise that there is a significant difference between nationality and domicile, which Resolution Response to EU Green Paper on Law on Divorce 9

10 applies in the UK and Ireland and this causes specific problems as it can overlap with a different nationality. There is also the issue of dual nationals and people whose habitual residence, domicile, or (dual) nationality is connected to a non-eu country. [15] We realise that this may mean that more EU citizens than now will be required to return to the country of their nationality to divorce there. In any event, as a result of the current lis pedens rule, we have experience that, at present, one of the spouses of a divorcing couple already travels back to their own home country in an attempt to issue first. We also consider that, because of the transport links and the relative proximity of the countries in Europe, this is not an onerous burden. Furthermore, it can be alleviated by encouraging couples living abroad (as well as bi-national couples) to make agreements on the choice of jurisdiction. Transfer in Exceptional Circumstances [16] We consider that, provided there is a hierarchy of grounds for jurisdiction, there is less of a requirement for the ability of a court to transfer the case to another jurisdiction although we agree that a power to transfer a divorce case should be included, in exceptional circumstances, as proposed at paragraph 3.7. If the current system, providing no hierarchy of grounds, is retained, transfer is essential to ensure that the country with the closer connection to the centre of gravity of a marriage is hearing the case. Applicable Law The problem of applying foreign law [17] As stated above, English family courts apply English substantive law. We recognise that England and Scotland, the EU jurisdictions that are built on common law (Ireland, Northern Ireland, Malta and Cyprus) as well as the Nordic countries (Sweden, Finland, Denmark) and Latvia are in a minority in applying lex fori. However, Resolution Response to EU Green Paper on Law on Divorce 10

11 in our experience, lex fori provides certainty and clarity for citizens and ensures that judges, who are making decisions about a family s future, are making those on the basis of their own substantive domestic law, in which they have been trained, rather than unfamiliar foreign law. Where English courts have to look at foreign law, it provides problems (e.g. in the case of questions of a validity of a foreign marriage or paternity). Under English law, questions of foreign law are questions of fact about which the court hears experts from both sides and then makes a decision as to which is more convincing. We do not consider that this is a suitable basis for dealing with the family issues of many cases coming before the courts. From our experience, there are the following main problems with applying foreign law: 1. Up-to-date legal texts let alone text books and commentary are not always available to local judges or practitioners. 2. In some cases legal texts may not even be available in the local language (consider applying Latvian law in Portugal). Often if the foreign law cannot be reliably ascertained, lex fori is the fallback position anyway. 3. The foreign legal system may be so different in its concepts and procedures from the local system that, even if a translation of statutes is available, practitioners and judges are unable to understand the meaning or may apply it entirely differently to the courts of the country whose law they apply. This is particularly the case with the discretionary system of financial provision in England. 4. At the very least, applying foreign law causes delay and increases costs and expense. 5. Not all countries have a clear distinction between substantive and procedural law, and, certainly, English family law does not. Foreign courts are therefore faced with the question of Resolution Response to EU Green Paper on Law on Divorce 11

12 first having to ascertain what part of a code is substantive law. 6. Not all law is codified and, although most English family law is based on statute, case law plays a very important role and is binding as if it was statute. Foreign courts will not usually have access to those judgments. 7. There seems to be no uniformity even between the countries applying foreign law whether to apply foreign substantive law or also foreign conflict rules. We understand that this means that in some parts of Germany maintenance cases after an English divorce are decided under German substantive law while other courts attempt to apply English law. [18] From our own experience with cases in other countries where the courts apply foreign law we understand that this works reasonably well in certain cases, especially where there is a substantial minority of foreign nationals in a particular country or area, e.g. Turkish or Italian law in Germany. In those cases there are legal text books and legal texts available in the local language and academics write about the foreign law in the professional journals. This is helped by the fact that most of the countries applying foreign law in Europe have systems based on the Code Napoleon with slight variations (or are similarly related) so that lawyers simply need to find out what these variations are rather than come to terms with an entirely new system of law with different concepts. However, we have seen disastrous consequences of foreign courts trying to apply English family law with outcomes that are so different to those here that the aim of certainty and predictability that underlines the theory of applying foreign law is defeated entirely. Often court cases are delayed for many years while the court obtains reports from experts on the foreign law. As often is the case, experts do not agree and, therefore, a judge who has quite possibly had no or minimal experience of the particular law of Resolution Response to EU Green Paper on Law on Divorce 12

13 that jurisdiction is left to make crucial family decisions in that regard. If the application of foreign law is difficult and the outcome uncertain, this defeats the point of it, namely predictability of outcomes and legal certainty for EU nationals. It is our view that the best advice and the best decisions according to a country s law can be obtained in the country from where that law originates. [19] It is also clear, as highlighted in Table 4 annexed to the Green Paper, that the applicable law rules vary considerably between EU member states in terms of the connecting factors which apply. We consider that all citizens should be treated in the same way, to provide certainty throughout the EU. [20] As stated at paragraph 5 above, while we deal with other EU countries in our international family law work, we deal also and to a significant extent with non-european jurisdictions, many of which are former British colonies and have legal systems based on common law, such as the US, Canada, Australia, New Zealand, the countries of the Indian sub-continent, Malaysia, Singapore, Hong Kong, Africa including Nigeria and South Africa, the Caribbean etc. We estimate that these non-eu countries outweigh EU countries when it comes to considerations in family law issues in England and Wales. All these countries apply their domestic law and, as far as we are aware, have no plans to change their laws and have no reason to do so. Any change by England of their choice of law system would dramatically affect our work with these countries. Our position means that we do not have the difficulties referred to in paragraph 1 of the Green Paper and as highlighted at Table 4, that several laws may be applied. Applying the law of another EU jurisdiction for some couples and English law for others seems problematic as would applying the law of all the countries listed above. [21] Provided that there is a hierarchy of criteria of jurisdiction including specifically the possibility of clients choosing the jurisdiction where Resolution Response to EU Green Paper on Law on Divorce 13

14 they would like their future to be resolved, together with the possibility of a transfer of a case, we cannot see why a move to lex fori should be problematic for those member states which apply foreign law. All practitioners around Europe have considerable experience of advising clients on their own domestic law. We accept that there may be implications in relation to a succession issues and, subject to responses the EU receives from those countries which apply foreign law, we would welcome the opportunity to respond further in this regard. [22] An aspect which goes beyond the scope of this response, but must be considered, is how to deal with non-eu nationals who form a large minority in certain EU member states (e.g. Turks in Germany, Algerians in France, Nigerians in England). It is conceivable that, rather than simply applying lex fori throughout, some countries may want to adopt a hierarchy of laws that matches the hierarchy of jurisdictions when dealing with non-eu citizens. For all EU connected cases this would then still result in the courts of all member states applying their own substantive law whereas it may tie in better with the way that EU courts deal with non-eu nationals, who may not be able to return to their home country to divorce there for a variety of reasons including cost. Resolution Response to EU Green Paper on Law on Divorce 14

15 Summary of our proposals 1. Introduction of a hierarchy of criteria for the basis of jurisdiction for divorce etc (hierarchy to be decided following consideration). (See paragraph 13) 2. The ability to choose jurisdiction (and therefore law). (See paragraph 11) 3. The ability to transfer proceedings in divorce etc., in exceptional circumstances, on the basis that another country has a closer connection. (See paragraph 16) 4. The extension of the lex fori principle in all family proceedings in the EU and, therefore, the removal of applicable of law rules by those countries where it exists or applicable law rules that match the jurisdiction hierarchy. (See paragraph 17) 5. To consider changes to the jurisdiction in divorce matters in tandem with consideration for reform of property consequences of marriage and partnerships. (see paragraph 9) Specific questions in the Green Paper [23] 2.1 Lack of Legal Certainty and Predictability for the Spouses We agree that there is lack of certainty first in relation to which jurisdiction is more appropriate and secondly as to the law to be applied in a particular jurisdiction (although not an issue in England which always applies domestic law). Under our proposals there would be a hierarchy of jurisdictions and courts would apply their own substantive domestic law (see above) [24] 2.2 Insufficient Party Autonomy As stated at paragraph 11 above, we give priority to any agreement made by spouses on jurisdiction and choice of law (although they should match). In the example given in the green paper, the hierarchy of jurisdiction would allow the couple to choose the Resolution Response to EU Green Paper on Law on Divorce 15

16 jurisdiction, and under lex fori, would ensure that this couple, who had the closest connection with Germany, did not find themselves before the Italian court or indeed have their case determined under Italian law in Germany. Depending on the final hierarchy the couple in Example 2 would either have to divorce in Italy or Germany, but could choose the other jurisdiction at any time. If they do, that jurisdiction will also apply their own law. Although this would allow them to choose German jurisdiction and therefore German law under which they could divorce sooner than under Italian law, this would strengthen rather than undermine the diversity of national laws in this area because there would be no pressure to make the law uniform in any way. The courts of each country will be able to apply its own law, which is what they know best and which is based on the culture, laws and value systems of the country. [25] 2.3 Risk of Results which do not correspond to the legitimate expectations of the citizens We agree that this is an issue with the current situation and arises quite often, mostly due to forum shopping where one country, not necessarily having the closest connection with the couple but still retaining jurisdiction, is seized of the proceedings first because it suits one party. There is currently no discretion to overcome such forum shopping. In the example given, the existence of an agreement would overcome the difficulty. If there is none, in default of an agreement, and as the parties are not joint nationals, it appears reasonable that Ireland should have jurisdiction. Citizens must recognise that an individual country s laws are based on their cultural and religious heritages and EU law should not interfere with this. It is vital that the integrity of the national laws and processes of EU member states are retained, especially in the sensitive area of family relationships based as they are on deep seated aspects of each country s identity. Resolution Response to EU Green Paper on Law on Divorce 16

17 [26] 2.4 Risk of Difficulties for Community Citizens living in a Third State Whether the couple is in a deplorable situation will depend on where they find themselves. If divorce does not exist in that country (or maybe not for Christians), it would indeed be a problem. However, although the situation is rare, Brussels II could be amended to allow parties resident in non-eu countries to divorce in their home country. In addition the hierarchy of jurisdictions in our model could end with sole nationality or domicile (although there could then again be two conflicting jurisdictions). [27] 2.5 Risk of rush to court 1. Are you aware of other problems than those identified above that may arise in the context of international divorces? Yes, we have addressed the problems above. [28] 3.1 Status Quo As stated at paragraph 2 above, we do not consider that the status quo should continue. [29] 3.2 Harmonising the conflict of law rules As stated above, we support this on the basis of jurisdictional hierarchy and by the implementation of lex fori to all member states. 2. Are you in favour of harmonising conflict of law rules? What are the arguments for and against such solution? We are in favour of harmonising conflict of law rules as we suggest above. Resolution Response to EU Green Paper on Law on Divorce 17

18 3. What would be the most appropriate connecting factors? We refer to 13 above to a hierarchy of criteria of jurisdiction. Parties can agree that one country has jurisdiction in the future in relation to divorce proceedings if there is a connecting factor. The factors need to be based on nationality/domicile and habitual residence to prevent divorce tourism. 4. Should the harmonised rules be confined to divorce, or apply also to legal separation and annulment? We consider that the harmonised rules should apply also to legal separation and marriage annulment. The problem is that questions on whether a marriage is void (as opposed to voidable) will always need to refer back to the law of the country where it was celebrated. 5. Should the harmonised rules include a public policy clause enabling courts to refuse to apply foreign law in certain circumstances? Our proposals would make this questions redundant. Otherwise it should not include such a rule when other EU countries are concerned. [30] 3.3 Providing to spouses the possibility to choose the applicable law 6. Should the parties be allowed to choose applicable law? What are the arguments for and against such a solution. As stated at paragraph 11 above we consider that parties should be allowed to choose the applicable jurisdiction which, on a lex fori basis, will be the same as the applicable law. It would not further legal certainty to allow parties to chose a law that has no connection with the jurisdiction as set out above. It may be Resolution Response to EU Green Paper on Law on Divorce 18

19 possible to provide that any choice of law agreement without a choice of jurisdiction should be interpreted as if that jurisdiction was chosen because at the moment it is impossible to choose jurisdiction and therefore agreements drafted currently may not include a jurisdiction clause. 7. Should the choice be limited to certain laws? If yes, what could be the appropriate connecting factors. Should it be limited to the laws of the member states? Should the choice be limited to lex fori? This issue would not apply under our model. If a different model was chosen we would agree that it should be limited to lex fori. 8. Should the possibility to choose applicable law be confined to divorce or should it apply to separation and marriage annulment? We consider that the parties should be able to choose an applicable jurisdiction in relation to legal separation and marriage annulment (voidable) as well as divorce. 9. What should be the appropriate formal requirements for the parties subject to the agreement on the choice of law? This should be governed by local law, possibly subject to a directive. See paragraph 12 above. [31] 3.4 Revising the grounds of jurisdiction as listed in Article 3 of Regulation No. 2201/2003 As stated above, we consider that this is too narrow and we refer above to our proposals for a hierarchy jurisdiction. Resolution Response to EU Green Paper on Law on Divorce 19

20 10. In your experience, does the existence of several grounds of jurisdiction result in the rush to court? As stated at paragraphs 2 and 8 above, we very much consider that the current situation encourages a rush to court. 11. Do you believe that the grounds of jurisdiction should be revised? If so, what would be the best solution? We reiterate our strong view, based on extensive experience, that Brussels II discourages relationship counselling, mediation, collaborate law and settlement before the issue of proceedings which can encourage the party with the resources to obtain international advice and choose a forum which suits their own interests and not the other party s. It does little to promote the family and needs to be changed urgently. It is important that this time the system is right. [32] 3.5 Revising the rule of residual jurisdiction in Article 7 of Regulation No.2201/ Do you consider that the harmonisation of the jurisdiction rules should be reinforced and that Article 7 of Regulation 2201/2003 should be deleted, or at least limited to cases where no EU citizens are involved. If yes, what should these rules look like? We consider that the residual jurisdiction rules should remain, i.e., jurisdiction is left with each member state if no other EU state has jurisdiction, according to the laws of that state. In our practice we have examples of British expatriates who could not otherwise divorce at all or only in jurisdictions with underdeveloped family legal systems. [33] 3.6 Provide the possibility to use a competent court Resolution Response to EU Green Paper on Law on Divorce 20

21 13. What are the arguments for and against introducing the possibility of prorogation in divorce cases? As stated at paragraph 11 above we very much advocate that parties are able to choose jurisdiction. 14. Should prorogation be limited to certain jurisdictions? We agree that prorogation should be limited to jurisdictions with which the parties have a connection through nationality, domicile or habitual residence of at least one party. 15. What should be the formal requirements for parties prorogation agreement? See paragraph 12 above. [34] 3.7 Introducing the possibility to transfer a case 16. Should it be possible to request the transfer of a case to a court of another member state? What are the arguments for and against such a solution? In our hierarchy of criteria we consider there will be limited circumstances when a transfer would be required to meet fairness and justice and to support closest connection but we agree that, in exceptional circumstances, a possibility for a case to be transferred should exist. A condition for a transfer should be that the courts of both jurisdictions in question agree in advance. We have experienced cases which were transferred only for the country in the second jurisdiction to decline to deal with the case. The transfer should also include the application of the new local law. An example where this may be suitable is a couple who are for example both French nationals and have made no agreement on jurisdiction or law Resolution Response to EU Green Paper on Law on Divorce 21

22 and live in England where they married. If, under the hierarchy that would apply, France has jurisdiction for divorce and the husband started a divorce there and the wife then started proceedings in England for nullity on the basis that the marriage was void for formality, the French court may agree that, as the matter turns on a question of English law, the whole case would be best transferred to England. This must be a rare example though. 17. What should be the connecting factors to establish whether a case can be transferred to another member state? See our answer to question 16 above. 18. What safeguards would be necessary to ensure legal certainty and avoid undue delays? Both courts would need to agree. [35] 3.8 Combining Different Solutions 19. Which combination of solutions do you believe would provide the most appropriate remedy for the problems described? See our summary contained at our paragraph 1 above. 20. Would you suggest any other solutions to solve problems described in Chapter 2? Please see our summary described at our paragraph 1 above. If you have any queries in relation to this response or wish to discuss it further, please contact the following members of Resolution s International Committee: Resolution Response to EU Green Paper on Law on Divorce 22

23 Charlotte Bradley David Hodson Andrea Woelke Resolution Response to EU Green Paper on Law on Divorce 23