Select Committee on European Scrutiny Thirty-Seventh Report

4 Jurisdiction and applicable law in matrimonial matters



COM(06) 399

+ ADDs 1-2

Draft Council Regulation amending Regulation (EC) No. 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters

Legal baseArticle 61(c) EC
Document originated17 July 2006
Deposited in Parliament26 July 2006
DepartmentConstitutional Affairs
Basis of considerationEM of 6 September 2006
Previous Committee ReportNone; but see (26460) 7485/05 HC 34-iv (2005-06), para 15 (20 July 2005)
To be discussed in CouncilNot yet fixed
Committee's assessmentLegally and politically important
Committee's decisionNot cleared; further information requested


4.1 The 1968 Brussels Convention (now Council Regulation 44/2001) prescribes rules on jurisdiction for most civil and commercial matters but does not apply to matrimonial proceedings. Council Regulation 2201/2003 sets out rules concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and matters of parental responsibility. This Regulation does not, however, determine the applicable law in relation to divorce proceedings.

4.2 Whether Community law should also determine rules on applicable law in divorce proceedings was a question first mentioned in the Vienna Action Plan in December 1999. The Hague Programme, adopted by the European Council in November 2004, called upon the Commission to bring forward a number of proposals in the area of matrimonial law including, in 2005, a draft instrument on the recognition and enforcement of decisions on maintenance and proposals on the conflict of laws in matters relating to divorce. In April 2005 the Commission published a Green Paper on applicable law and jurisdiction on divorce matters.

4.3 In its response to the Commission's Green Paper the Government expressed reservations about the practical difficulties involved in applying systems of foreign law in matrimonial proceedings in the Member States. The Government also questioned if the problems identified by the Commission in its Green Paper might not be more effectively addressed by revision of the existing jurisdictional rules than by the introduction of new rules on applicable law. We cleared the Green Paper from scrutiny on 20 July 2005 expressing agreement with the Government's reservations.

The draft Council Regulation

4.4 The proposed Council Regulation follows on from the Commission Green Paper on applicable law and jurisdiction in divorce matters and is intended to simplify and facilitate divorce proceedings between EU citizens of different nationalities or resident in different Member States.

4.5 Under the existing jurisdiction rules of Council Regulation 2201/2003 (the "Brussels II Regulation") "international" couples who wish to divorce may choose between several alternative grounds of jurisdiction in initiating proceedings in a court in an EU Member State. Once divorce proceedings have been initiated before a court in the European Union, the applicable law is then determined according to the domestic conflict of laws rules. There are, however, significant differences between the conflict of laws rules of the various Member States.

4.6 The proposal would amend and complement the existing regime under Regulation 2201/2003 in the following respects:

  • First, the proposal would introduce a new Article 3a into the Brussels II Regulation which would permit the parties to agree to a jurisdiction on the grounds of substantial connection with that jurisdiction. In addition to the grounds of jurisdiction already listed in the Brussels II Regulation, the proposal envisages that substantial connection may be established on the grounds that the place in question was the last common habitual residence for a minimum period of three years or where one of the spouses is a national of that Member State or, in the case of the United Kingdom and Ireland, has his or her "domicile in one of the latter countries". Any agreement conferring jurisdiction must be in writing and signed by both parties. It can be entered into at any time before proceedings are initiated anywhere in the EU;
  • Secondly, the proposal would introduce a new residual jurisdiction rule under Article 7 of the Brussels II Regulation. The proposed Article 7 is intended to close the single "jurisdiction gap" which the Commission suggests exists under the current rule, and which (it is suggested) can lead to situations where no court would have any jurisdiction to deal with a divorce case. In such situations the proposed new Article 7 would allow courts of a Member State to establish jurisdiction simply on the basis of common previous habitual residence in the territory of their Member State or the fact that one spouse is a national of that Member State, or, in the case of United Kingdom or Ireland, if he or she is domiciled in one of these countries;
  • Thirdly, the proposal would permit spouses to choose the applicable law. Such agreement would again have to be in writing and signed by both spouses, and could likewise be entered into it at any time before proceedings are initiated anywhere in the EU; and
  • Finally, the proposal would harmonise the conflict of laws rules operating in the absence of choice by the parties. This would mean that the same rules would determine the applicable law in divorce cases involving spouses from more than one Member State.

The Government's view

4.7 In their Explanatory Memorandum of 6 September 2006 the Parliamentary Under-Secretary of State at the Department for Constitutional Affairs (Baroness Ashton of Upholland) and the Minister for Justice of the Scottish Executive (Cathy Jamieson) state that the Government considers it important that where EU nationals move between states they should be able to apply for divorce in the courts of the EU Member States which best establish jurisdiction and that, where the courts in the United Kingdom are seised, the preferred approach is to apply the law of the forum. The Ministers make the following detailed remarks on applicable law and jurisdiction.

Applicable law

"A number of other Member States have rules which allow foreign law to apply to family proceedings. However, family courts in the UK are not accustomed to applying foreign law. The Government's approach is that such provisions are not obviously necessary here and that the law of the forum should continue to apply.

"The Government is concerned that to apply the law of a foreign jurisdiction in the UK could involve considerable practical difficulties, cause delay and increase costs, because it may be necessary to call expert evidence as to the foreign law. It is Government policy that the costs to parties should be reasonable. The Government is not at this point wholly persuaded that there are such problems with the lex fori principle to justify departure from that principle.

"The Commission's main proposal is to apply the law of the common habitual residence of the spouses but this will require examination in that, in cases involving couples with homes in more than one country, the habitual residence may not be clear cut.

Jurisdictional provisions

"The proposed jurisdictional rules seem to extend beyond the provisions within the Brussels IIa Regulation and introduce new rules on residual jurisdiction. This will need to be considered carefully. In extending applicable law to non-Member State law, it would appear that the measure goes further than necessary for the proper functioning of the internal market."

4.8 On the question of subsidiarity, the Minister's comment that although Article 65 EC gives the Community power to promote the compatibility of the rules concerning conflict of laws in the Member States, the Government will wish to be satisfied that the proposal does not go beyond what is necessary to achieve the objectives of the Treaty.

4.9 Finally, the Ministers state, that if foreign law were to apply to some divorce cases, as envisaged by the proposal, this might have financial implications for the courts and the legal aid fund.


4.10 We thank the Ministers for their outline of the proposal and the Government's view. As we said in relation to the Commission's Green Paper, we share the Government's reservations about the practical difficulties involved in the application of a foreign law in matrimonial proceedings. We ask the Ministers if the Government's thinking in this respect has changed and, if not, if the Government nevertheless intends to opt into this proposal under Title IV.

4.11 We also ask the Ministers to explain how the proposed harmonisation of the conflict of laws rules in the absence of choice by the parties could be regarded as "necessary for the proper functioning of the internal market" for the purposes of Article 65 EC. We also ask the Ministers what test, if any, the Government thinks may be appropriate for assessing the compatibility of the proposal with the principle of subsidiarity. We are concerned in particular about the added complexity and additional costs of litigation likely to flow from applying foreign law not only in the courts of England and Wales but also in Scotland and Northern Ireland.

4.12 Finally, we note that legal problems associated with "international marriages" are not restricted to marriages between spouses of EU nationalities. We therefore ask the Minister if the Government agrees that the Hague Conference on Private International Law would more appropriately deal with this issue.

4.13 We shall hold the document under scrutiny pending the reply from the Ministers.

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Prepared 26 October 2006