4 Jurisdiction and applicable law in
matrimonial matters
| (27727)
11818/06
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
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| Legal base | Article 61(c) EC
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| Document originated | 17 July 2006
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| Deposited in Parliament | 26 July 2006
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| Department | Constitutional Affairs
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| Basis of consideration | EM of 6 September 2006
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| Previous Committee Report | None; but see (26460) 7485/05 HC 34-iv (2005-06), para 15 (20 July 2005)
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| To be discussed in Council | Not yet fixed
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
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Background
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.
Conclusion
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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