Select Committee on European Scrutiny Twelfth Report

8 Jurisdiction and applicable law in matrimonial matters



+ ADDs 1-2

COM(06) 399

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

Legal baseArticles 61(c) and 65 EC
DepartmentConstitutional Affairs
Basis of considerationLetter of 15 February 2007
Previous Committee ReportHC 34-xxxvii (2005-06), para 4 (11 October 2006)
To be discussed in CouncilNot yet fixed
Committee's assessmentLegally and politically important
Committee's decisionCleared


8.1 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.

8.2 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.

8.3 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

8.4 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.

8.5 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.

8.6 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 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

8.7 When we originally looked at this proposal in October 2006 we reminded the Government of the reservations it had originally expressed in relation to the Green Paper underlying this proposal. We also asked the Government to clarify:

  • if the Government's thinking were still consistent with the views expressed in relation to the Green paper and, if not, if the Government intended to opt into this proposal;
  • 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;
  • the compatibility of the proposal with a principle of subsidiarity; and, finally,
  • if, given that legal problems associated with 'international marriages' are not restricted to marriages between EU nationals, the Government agreed that the Hague Conference on private international law could deal more appropriately with this issue.

8.8 The Parliamentary Under-Secretary of State in the Department for Constitutional Affairs (Baroness Ashton) replied to our questions on 15 February 2007. Her reply reads as follows:

"I am writing at this juncture to bring the Committee up to date with the Rome III proposal on divorce.

"I am aware that I have not written to you since your helpful comments in October. As you know, the deadline by which the Government had to decide whether to opt-in to the proposal at fell at the end of October. I can confirm that the Government decided not to opt-in on this occasion under the terms of our protocol to Title IV of the TEC. It is a matter of record that the Republic of Ireland also decided not to opt-in.

"You raised a question about how proposed harmonisation of conflict of law rules in the absence of choice by the parties could be necessary for the proper functioning of the internal market. The Commission argues that the proposal would facilitate the proper functioning of the internal market since 'it will eliminate any obstacles to the free movement of persons who are currently faced with problems due to the remaining differences between the national laws with regard to applicable law and jurisdiction in matrimonial matters.' The Commission has, however, brought forward no evidence to demonstrate that this is a real problem, and the Government remains to be satisfied that such rules are genuinely necessary for the proper functioning of the internal market.

"You asked what test the Government view thought might be appropriate concerning the compatibility of the proposal with the subsidiarity principle. This is linked with the question of the adequacy of Article 65 as a Treaty base. The Government would be satisfied that the subsidiarity principle had been satisfied on this occasion if it were shown convincingly that the proposal pursued a Community objective, such as the functioning of the internal market. As I have said, the Government is not persuaded of this.

"We share the concerns expressed by the Committee about complexity and expense of proceedings likely to result from applying foreign law in the UK courts.

"Lastly, you asked whether problems associated with 'international marriages' might not be better dealt with in the Hague Conference, having regard in particular to the fact that any such problems are not limited to persons of European nationalities. The Government is a strong supporter of the work of the Hague Conference, but before lending explicit support to this idea we would want to see a scoped out proposal demonstrating that there was need for an international instrument in this area and that there was a reasonable likelihood of agreement.

"The UK is keeping a watching brief as the proposal is considered in the Council working group. Other delegations are also experiencing difficulties with the proposed rules on applicable law but do not share our ability not to opt-in. There must be a real risk that one or more of them may veto the proposal, given the requirement of unanimity unless some accommodation can be found."


8.9 We thank the Minister for her detailed and reassuring answers. We welcome the Government's approach and have no further questions to the Minister. Accordingly, we are content to clear the document.

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