(i) Jurisdiction in relation to
divorce etc.
16. Jurisdiction in
relation to proceedings in England and Wales or Scotland for nullity,
divorce or judicial separation is governed by section 5 of the
Domicile and Matrimonial Proceedings Act 1973. The court has jurisdiction
if either of the parties to the marriage:
(a) is domiciled in England
or Wales or Scotland, as the case may be, on the date the proceedings
are begun; or
(b) was habitually resident there
throughout the period of one year ending with that date; or
(c) (in proceedings for nullity)
dies before that date and either was at death domiciled in that
country or had been habitually resident there throughout the period
of one year ending with the date of death.
Under the Convention jurisdiction
would be dependent on the habitual residence of the parties or
nationality of both spouses or joint domicile. According to Article
2.1, competence would lie with the courts of the Member State:
- the spouses are habitually
resident, or
- the spouses were last habitually
resident, insofar as one of them still resides there, or
- the respondent is habitually
resident, or
- in the event of a joint application,
either of the spouses is habitually resident, or
- the petitioner is habitually
resident if he or she resided there for at least a year immediately
before the application was made;
(b) of nationality of both
spouses or of joint domicile established on a permanent basis.
17. Dr Clive welcomed
the strong emphasis on habitual residence in the Convention. It
had the advantage of representing a real connection between the
person and the country in question and was, for that reason, greatly
to be preferred to nationality and domicile. The emphasis on habitual
residence would not be a revolutionary change in the jurisdictional
principles applied in the United Kingdom. Courts in the United
Kingdom would have jurisdiction in almost all cases where they
have it at present and would lack jurisdiction in almost all cases
where they lack it at present. There would be a few cases where
the United Kingdom courts would gain jurisdiction in relation
to couples who had recently established habitual residence in
the United Kingdom but who had not yet been habitually resident
here for a year. In Dr Clive's view, this did not seem objectionable.
More generally, he said: "at the moment the courts in this
country have control over their own proceedings of course, but
in reality they have very little control over what happens in
other countries and there is a plethora of grounds for jurisdiction
in other countries, some of which we would regard as undesirable
and the whole thrust of this Convention is to bring some order
into this and have only justifiable grounds of jurisdiction and
thereby solve a problem which exists already. It does not create
a problem; it helps to make it better" (p 2, Q 26).
18. Witnesses identified
certain differences between the Convention rules and the current
position in the United Kingdom. First, a number of witnesses expressed
concern that the proposed grounds of jurisdiction would remove
the present right of a spouse to commence proceedings founded
on his or her own domicile. The Convention thus failed to provide
adequately for the case of a woman (or man - witnesses typically
gave the example of a woman but it was recognised that the potential
problem was the same for a man) from the United Kingdom who marries
a man from another Member State and goes to live with him there.
If the marriage breaks down and the woman returns to the United
Kingdom with the intention of remaining here, she would regain
her English or Scots domicile, as the case may be, and could,
as the law presently stands, straightaway petition for divorce.
The proposed Convention would require her to reside in the United
Kingdom for a year before she could present her petition. Her
husband would be under no such delay in commencing proceedings
in the other Member State and if he did so a court in the United
Kingdom would have to decline jurisdiction (by virtue of Article
10, the lis pendens rule - discussed below) if the wife
presented a petition here. To require her to wait a year might
be to prejudice her interests. The Law Society of Scotland pointed
out the practical implications as regards financial matters and
interim or protective measures (p 64).
19. The President's
International Committee acknowledged, however, that the domicile
of the petitioner alone (as opposed to the domicile of the respondent
alone) was not a ground of jurisdiction qualifying for recognition
under the 1970 Hague Convention, although they believed that it
did command recognition within a number of Commonwealth countries
(p 22). Dr Clive was concerned about the implications of seeking
to retain and include such jurisdiction in the proposed Convention.
Other Member States would say that nationality ought to be treated
on the same footing as domicile. If jurisdiction could be founded
on the nationality of the petitioner that would, in Dr Clive's
view, destroy much of the benefit of the Convention; "I would
be very reluctant to see the United Kingdom pressing too hard
or even at all for the petitioner's own domicile to be a ground
for jurisdiction"( Q 16).
20. The Departments
said that other Member States had been reluctant to accept the
domicile of either party as a sufficient ground for jurisdiction
under the Convention. Except in one set of circumstances, they
did not believe that loss of this jurisdiction would matter and
had not sought to defend it on a general basis. The exception
concerned the international marriage where one spouse went to
live in the country of the other and the marriage broke down after
a short period. Together with two other Member States (Finland
and Sweden) the United Kingdom had tabled a compromise proposal
under which a court would have divorce jurisdiction based on the
domicile or nationality of the petitioner provided that he or
she had been habitually resident in that Member State for at least
one year in the five years preceding the commencement of the proceedings.
The Departments believed that this would cover the case of most
spouses returning home after the breakdown of relatively short
marriages and were cautiously optimistic that other Member States
might agree to the limited change being proposed (p 38, QQ 186-7,
190).
21. Most witnesses were
critical of the rules proposed in Article 10 (the lis pendens
rules) for dealing with the situation where proceedings were
begun in different Member States at or about the same time. All
courts other than that first seised would be obliged to decline
jurisdiction. Witnesses contrasted this rigid rule with the more
flexible approach currently adopted by United Kingdom courts.
Under the Domicile and Matrimonial Proceedings Act 1973 (section
5(6) and Schedule 1 and, for Scotland, section 11 and Schedule
3) a court in England and Wales or Scotland has a discretion to
stay or sist proceedings where there are concurrent proceedings
elsewhere in respect of the same marriage. The courts apply a
doctrine of forum non conveniens (the 1973 Act refers to
the court having regard, in the exercise of its discretion to
stay proceedings, to "the balance of fairness (including
convenience) between the parties") designed to ensure, so
far as practicable, that the proceedings are brought before the
courts of the most appropriate country.
22. The President's
International Committee said that the proposed regime, modelled
on Article 21 of the 1968 Brussels Convention, seemed retrograde
when compared with the system which has evolved in this country
and did not consider the 1968 Convention an appropriate precedent
for two reasons. First, the exercise of matrimonial jurisdiction
was not normally limited to a single cause of action, as in the
case of a civil claim; it would be likely to encompass other matters,
notably finance and children. Second, the proposed Convention
contained a wider range of elective bases of jurisdiction than
the 1968 Brussels Convention, thus increasing the chances of a
forum race. Mr Karsten emphasised the importance in practice of
the implications for the financial consequences of divorce proceedings.
The choice of forum can make an enormous difference because the
approach to the quantum of financial relief varied considerably
from one country to another and, despite the existence of international
conventions, the enforcement of financial orders (periodical payments,
lump sum and transfer of property orders) following divorce presented
serious problems. He accepted that it might theoretically be possible
for a court under the proposed Convention to take jurisdiction
over the divorce but to decline, in favour of another court, to
deal within the ancillary financial matters but questioned whether
that other court would necessarily have the power and if so would
wish to act in such circumstances (p 21, QQ 83, 88, 91, 92, 96).
23. Witnesses thought
that a "first come, first served" rule might cause a
rush or race to the courts, which would be contrary to the policy
behind the recent reforms of English divorce law[13].
For the SFLA, Miss Keir said: "It is a backward step when
you consider that the Family Law Act is rightly promoting mediation
and non-litigation resolution". As a number of witnesses
also pointed out that, if it came to a race to the courts, the
petitioner before the English courts would not, at least in the
future, be well placed to win, given the recent changes to the
law. Under the Family Law Act 1996, yet to be brought into force,
there would be a compulsory waiting period of three months before
any formal application could be commenced (QQ 95, 106).
24. A number of witnesses
urged that the Convention adopt a more discretionary system along
the lines of that now applied in the United Kingdom. According
to Professor McCleod, many might see the Convention's rules as
"mechanistic and crude". In family law matters there
was a strong case for the application of discretionary principles
(p 70). Professor Beaumont said if that could not be achieved
then the Convention should be redrafted as a "single"
convention (ie one dealing only with recognition and not
laying down jurisdictional rules): "The gains of a double
convention, if any, are not worth the cost of an unseemly rush
to get divorced" (p 57).
25. But not all witnesses
were as condemnatory and dismissive of Article 10. Dr Clive noted
that as between courts in the British Isles a system of obligatory
stays operated under the 1973 Act. It could be argued that, provided
the grounds of jurisdiction were reasonable and all the countries
involved conducted the proceedings in accordance with accepted
principles of natural justice, a simple rule for the resolution
of such conflicts was better than the less predictable exercise
of discretion. Dr. Clive thought that a mandatory system within
the operation of a European scheme was acceptable in principle.
A "first come, first served" rule had the merit of simplicity
and familiarity. He said: "It does seem to me that there
is something to be said for having mandatory rules rather that
discretion on both sides because the danger is that both courts
will feel quite reasonably that they are in a good position to
decide the case". If both cases continued that would be
the worst of all possible worlds because one of them would be
bound to be a waste of expenditure. Dr Clive acknowledged, however,
that it would be possible to have a more refined solution to the
problem of concurrent proceedings in different national courts
(p 3, QQ 17, 20). The Departments expressed concern about
the inflexibility of Article 10. They did not agree with Dr. Clive.
Mr Beaton said: "we are not entirely persuaded by Article
10 although the mandatory sist provisions that work quite well
between the United Kingdom jurisdictions ... are now well-established
and do not cause any problems intra United Kingdom. People are
more concerned when it comes to international jurisdiction matters
in this regard". The implications for the ancillary matters
in relation to divorce raised particular concern in practice (QQ
191-2).
26. Professor Hartley,
being, as he said, realistic about the likelihood of the other
Member States accepting the United Kingdom's approach to concurrent
proceedings, proposed that the Convention be amended to provide
that the court first seised, if it thinks another court is more
appropriate, could stay proceedings in favour of that other court,
provided the other court was prepared itself to accept the proceedings.
Such a rule would, he believed, go some way to improving matters
and, because it required both courts to agree, should be acceptable
to other Member States. Dr Clive said that there was an example
of such an approach in the 1996 Hague Convention (Q 68)[14].
The Departments thought that Professor Hartley's proposal was
an interesting one and agreed to consider it. It might, for example,
be particularly helpful with regard to the relationship of proceedings
in the United Kingdom and in Ireland.They thought that the proposal
might still involve a need to define the grounds relating to the
exercise of the judicial discretion it would confer, which might
be difficult to achieve when other Member States did not look
so favourably on judicial discretions of this nature (QQ 192-4).
27. As regards cases
not falling within the scope of the Convention, a number of witnesses
raised the question whether it would remain open to courts in
the United Kingdom to retain and exercise the forum non conveniens
doctrine. Some uncertainty surrounded this in the context
of the 1968 Brussels Convention. The Faculty of Advocates proposed
that there should be an express provision in the Convention preserving
the courts' powers to decline jurisdiction on this ground, where
to do so was not inconsistent with the Convention (p 61).
(ii) Jurisdiction in relation
to custody orders
28. As regards custody
orders made in the context of proceedings for nullity, divorce
or judicial separation, a court in the United Kingdom has jurisdiction
where matrimonial proceedings in respect of the parents of the
child concerned are continuing before that court (a number of
witnesses referred to the divorce court having "automatic"
jurisdiction in relation to the children). The Convention (Article
3) provides that the basic ground of jurisdiction is that the
child in question is habitually resident in the Member State in
which the divorce proceedings are taking place.
29. A number of witnesses
pointed out that the effect of the proposal would be to restrict
the ability of United Kingdom courts to deal with children involved
in divorce proceedings who are not habitually resident here. The
Departments pointed out that were the United Kingdom to ratify
the 1996 Hague Convention (no decision had yet been taken on this
question) the present automatic jurisdiction of divorce courts
here over children of the marriage living abroad would be restricted
(p 39). Witnesses accepted that the loss would not, in practice,
be substantial because jurisdiction was rarely exercised when
the child was habitually resident abroad. Further, the restriction
would be a qualified one. The draft provides that where the child
is habitually resident in another Member State the court has jurisdiction
if at least one of the spouses has parental responsibility in
relation to the child and that jurisdiction is accepted by the
spouses as being in the best interests of the child (Article 3(2)).
Dr Clive noted that the proposal was similar in this respect to
Article 10[15]
of the 1996 Hague Convention (p 4).
30. The President's
International Committee expressly agreed with the principle adopted
by the 1996 Hague Convention and implicit in Article 3 of the
present proposal that the country of the child's habitual residence
has the prime claim to make decisions concerning the child's welfare.
As regards Article 3(2), they pointed out that there were divergences
between the present proposal and Article 10 of the 1996 Hague
Convention. These, the President's International Committee said,
should be eradicated. The approach of the 1990 Hague Convention
was preferable: at least one of the parents should be habitually
resident in the Member State concerned and the court's jurisdiction
should be accepted by all persons having parental responsibility
(p 23). The Departments agreed that discrepancies between the
two Conventions should be removed but thought that even if they
remained the practical effects would not be likely to be significant
(p 39).
31. What was especially
important to a number of witnesses was that there should so far
as possible be uniformity in jurisdictional and recognition rules,
particularly in relation to matters concerning children. The Law
Society of Scotland identified and described four schemes of jurisdictional
rules which would be applicable in the United Kingdom on the assumption
that both the 1996 Hague Convention and the present proposal were
adopted: "There is no particular justification in jurisdictional
matters having four different sets of rules, depending on what
other country is involved". There was a strong argument for
harmonising the provisions of the Hague Convention and the present
proposal (p 63). The Departments agreed that the present proposal
should not apply grounds of jurisdiction within the European Union
which would be significantly different from those which would
apply in relation to all other States party to the 1996 Hague
Convention throughout the world (p 39). Other witnesses placed
great weight on this consideration. The need for harmony with
the Hague Convention was emphasised by Lord Rodger, the Lord President
of the Court of Session , the most senior judge in Scotland. He
also pointed to the danger that, by including custody matters
in the proposed Convention, the risk of conflicts would be increased.
That would be extremely undesirable: "in all disputes the
main concern is the welfare of any children, but that can easily
become obscured if complicated points on jurisdiction can be raised.
The greater the number of competing bases for jurisdiction, the
greater is the opportunity for such points being taken and for
undesirable complexities being introduced" (p 73).
32. Professor McClean
said that the overall policy of the draft was far from clear.
In particular he questioned why Article 3(2) made the habitual
residence of the child within the Member States as a whole of
importance. One implication of Article 7 (the nature and effect
of which is described in paragraph ...above) was that as regards
children who were habitually resident in a non-Member State the
court in a Member State taking jurisdiction over the divorce of
the parents might also take jurisdiction over the children under
national law. A custody order from that court would have to be
recognised in other Member States. If so, Professor McClean said,
the boundaries set around Article 3(2) were very puzzling.
He considered that the Convention's principles as to jurisdiction
in children cases were unsatisfactory and that insufficient thought
had been given to the implications (p 70).
33. Witnesses also expressed
concern that the proposal was limited to a "child of both
spouses" whereas domestic rules generally applied to a "child
of the family", a wider concept. Dr Clive said that this
was a defect (Q 34). The SFLA said that limiting Article 3 to
children of the marriage was likely to produce anomalies and inconsistencies.
For example, what would be the position of a child of the first
marriage of the mother in the event of the breakdown of her second
marriage (p 24, Q 115)? The practitioners supported an amendment
of the text to include "children of the family". That
terminology, they recognised, might not be acceptable. Mr Karsten,
for the President's International Committee, said that Dr Clive's
suggestion, to refer to children "having a connection with
the marriage deemed sufficient by the internal law of that Member
State", might meet the need (p 6, Q 113-4).
34. The Departments
acknowledged that Article 3 was unsatisfactory in this respect,
though trying to persuade other Member States of the need to amend
the Convention had not so far been successful. The risk, however,
that United Kingdom courts would have to apply different provisions
to different children of the family where, as in the example quoted
above, some of the children were stepchildren might be diminished
given the degree of consistency between Article 3 of the proposal
and Articles 5 and 10 of the 1996 Hague Convention (which do not
distinguish between different categories of children in this respect)
The Departments would nonetheless continue to press for amendment
of the Convention (p 39, Q 168-72).
7
Articles 14 and 15 of the French Civil Code give jurisdiction
based on the French nationality of petitioner or respondent and
in effect guarantee the right of French nationals to access to
the French courts. Back
8
A committee set up by the President of the Family Division in
order to monitor developments in the international field which
bear on family law.The Committee is chaired by Lord Justice Thorpe
and includes judges, practitioners, academics and representatives
of interested organisations. Back
9
Under the doctrine of forum non conveniens a court, which
has jurisdiction over a matter, can decline jurisdiction where
it considers that the case is not really suitable for that court
and would be better tried elsewhere. The application of the doctrine
in relation to the proposed Convention is considered further at
paragraphs 21-27 below. Back
10
We consider the proposed role of the European Court at paras 49-53
below. Back
11
Article 220 provides that "Member States shall, so far as
is necessary, enter into negotiations with each other with a view
to securing for the benefit of their nationals: ...- the simplification
of formalities governing the reciprocal recognition and enforcement
of judgments of courts or tribunals and of arbitration awards". Back
12
Under Article K. 2., "The Council may: ...(c) without prejudice
to Article 220 of the Treaty establishing the European Community,
draw up conventions which it shall recommend to the Member States
for adoption in accordance with their respective constitutional
requirements". Back
13
The Family Law Act 1996 does not extend to Scotland Back
14
Section 52 of the Matrimonial Causes Act 1973 defines "a
child of the family" as "(a) a child of both [parties
to the marriage]; and (b) any other child, not being a child who
is placed with those parties as foster parents by a local authority
or voluntary organisation, who has been treated as a child of
their family". Back
15
Article 10 of the 1996 Hague Convention enables the courts of
a Contracting State exercising matrimonial jurisdiction in relation
to the parents of a child habitually resident in another Contracting
State to "take measures directed to the protection of the
person or property of such child if (a) at the time of commencement
of the proceedings, one of his or her parents habitually resides
in that [ie the forum] State and one of them has parental
responsibility in relation to the child, and (b) the jurisdiction
of these authorities to take such measures has been accepted by
the parents, as well as by any other person who has parental responsibility
in relation to the child, and is in the best interests of the
child". Back
