Letter from Rt Hon Baroness Ashton of
Upholland, Parliamentary Under Secretary of State, Department
for Constitutional Affairs to the Chairman
You asked to be kept informed of developments
concerning the consultation exercise on the Rome III proposals.
You are aware of the consultation on the Commission's
Green Paper. The Department received nine responses from the following
Bar Council of England and Wales.
Brethren Christian Fellowship.
European Economic and Social Committee.
Individual (Mr Leslie Seymour).
International Family Law Committee.
Northern Ireland Commissioner for
Children and Young people (NICCY).
Solicitors Family Law Association).
The Association of District Judges.
These are attached for your reference (not printed).
The Commission's Green Paper set out a list
of questions. The UK Government's response to the Commission,
which is attached builds on the responses we received. They support
maintaining the current position of the law of the forum (lex
Our response is quite short and is a robust
defence of the law of the forum, or lex fori, principle
which we believe currently provides an effective approach.
31 May 2006
RESPONSE TO COMMISSION GREEN PAPER ON APPLICABLE
LAW AND JURISIDICTION IN DIVORCE MATTERS
The United Kingdom is a good example of several
jurisdictions each exercising lex fori in close proximity
The UK comprises the jurisdictions of England and Wales, Scotland
and Northern Ireland and has free movement of citizens between
those jurisdictions despite the variations in their respective
legal systems. This response is informed by the views of each
of these jurisdictions.
Question 1: Are you aware of other problems
than those identified that may arise in the context of "international"
No. We are not aware of other problems, neither
are we aware of the perceived risk of forum shopping in divorce
matters being a reality. It is not clear how often some of the
scenarios referred to in the Green Paper arise in practice, and
to what extent they cause real difficulties when they do. Forum
shopping would be more likely to affect proceedings for ancillary
relief but these are not the subject of this consultation.
Question 2: Are you in favour of harmonising
conflict-of-law ruIes? What are the arguments for and against
We are not in favour of harmonising conflict
of law rules as there is little evidence to support the perception
that forum shopping is a significant problem. UK jurisdictions
currently apply the law of the forum which delivers legal certainty
and predictability. Application of laws from other jurisdictions
would reduce legal certainty, increase costs for courts and parties,
and incur delays. We would not wish to reopen the jurisdictional
rules established by Brussels IIa either, since currently there
is insufficient evidential basis for amending such a relatively
Question 3: What would be the most appropriate
We do not favour harmonisation of choice of
law rules but the obvious connecting factors would be nationality,
domicile and habitual residence. The rule in the UK jurisdictions
is that the courts will have jurisdiction if a party is domiciled
Question 4: Should the harmonised rules confined
to divorce or apply also to legal separation and marriage annulment?
Legal separations are seldom obtained in the
UK jurisdictions but if rules on divorce were harmonised it would
be logical that this would also be applied to legal separation
as divorce and legal separation are based on the same grounds.
It would not be suitable to apply choice of law rules to nullity
which has entirely different grounds.
Question 5: Should the harmonised rules include
a public policy clause enabling courts to refuse to apply foreign
law in certain circumstances?
It would be essential to include a public policy
clause to protect Member States' domestic interests in the politically
and culturally sensitive area of family law.
Question 6: Should the parties be allowed
to choose applicable law? What are the arguments for and against
such a solution?
No. Lex fori should be preferred. Choice
of parties on which law should be applied would effectively promote
forum shoppingalbeit applied locallypotentially
leading to uncertainty, argument, delay and increased costs. Lex
fori provides certainty, speed and efficiency.
Question 7: Should the choice be subject to
certain laws? If yes, what would be the appropriate connecting
factors? Should it be limited to the laws of the Member States?
Should the choice be limited to "lex fori"?
We have indicated that we are not in favour
of complete freedom of choice and prefer the choice is limited
to lex fori for the reasons above. The need to establish
"connecting factors" to support any other approach indeed
illustrates the uncertainty such a change could introduce.
Question 8: Should the possibility to choose
applicable law be confined to divorce or should it also apply
to legal separation and marriage annulment?
See answer to 4 above.
Question 9: What should be the appropriate
formal requirements for the parties' agreement on the choice of
This is a matter of detail which can be considered
if the suggestion under consideration is taken further. Such considerations
would be likely to include the need for the choice to be made
in writing and any agreement on choice of law prior to the commencement
of proceedings would not be binding.
Question 10: In your experience does the existence
of several grounds of jurisdiction result in "rush to court"?
There is no evidence that the existence of several
grounds of jurisdiction results in "rush to court".
Article 19 of the Brussels IIa Regulation does encourage spouses
to issue proceedings at an early stage but we do not consider
there is sufficient evidence of the phenomenon to require amendment
of Brussels IIa at, this juncture.
Question 11: Do you believe that the grounds
of Jurisdiction should be revised? If so, what would be the best
We do not consider that there is sufficient
evidence that the existing grounds of jurisdiction require revision.
This Regulation has not been in force for long and in our view,
sufficient time needs to elapse for adequate evidence for the
need for change to emerge, before any revision is considered.
Question 12: Do you consider that the harmonisation
of the jurisdiction rules should be reinforced and that Article
7 of Regulation number 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 any revision of Regulation 2201/2003
to be premature as, in our view. there is currently no sound evidential
basis for considering its revision.
Question 13: What are the arguments for and
against introducing the possibility of prorogation in divorce
The UK would only be in favour of introducing
a prorogation clause subject to evidence that there is a real
problem with forum shopping.
Prorogation will only apply with the consent
of both parties and therefore this issue is unlikely to apply
to the most difficult cases requiring judicial intervention. On
the face of it, the inclusion of a prorogation clause would seem
to eliminate the particular problem of EU citizens resident in
a third state and denied access to the applicability of the Brussels
IIa Regulation where they could only sue in the Member State of
common domicile/nationallty, which may not exist, but, would not
prevent them from being sued. A prorogation clause would also
appear to reduce the likelihood of parties acting unilaterally
and under Article 19the "lis pendens clause",
and seising a court's jurisdiction before the other party does,
but clearly this would only be operable where both parties were
Question 14: Should prorogation be limited
to certain jurisdictions?
Prorogation should be limited to the fora available
under Article 3 of Brussels IIa or a jurisdiction where at least
one spouse has a clear, close connection (nationality, domicile,
Question 15: What should be the formal requirements
for the parties' prorogation agreement?
The formal requirement would have to be an express
agreement by both parties in writing; on the choice of court.
However, no agreement as to the choice of court should be binding
other than that made at the time of instituting divorce proceedings
and not prior to the marriage, in a pre-nuptial agreement for
Question 16: Should it be possibie to request
the transfer of a case to the court of another Member State? What
are the arguments for and against such solution?
Again, as indicated in our response to Question
13, the UK would only be in favour of introducing a provision
to transfer a case subject to evidence that there are real problems
in cross-border cases which could be resolved with such a provision.
Cases should be capable of transfer on the request of one party,
where the court believes this to be in the interests of justice,
to another Member State. Given that the Brussels IIa Regulation
contains a large number of jurisdictional grounds, transfer would
enable the case to go to the country which has the genuine closest
connection in the circumstances of the case.
Question 17: What should be the connecting
factors to establish whether or not a case should be transferred
to another Member State?
It would seem logical to continue to use the
existing grounds of jurisdiction in Article 3 of the Brussels
IIa Regulation as the relevant connecting factors, and difficult
to justify excluding any of them, but there would also need to
be a broad discretionary test in place to justify the transfer
to another Member State's jurisdiction,
Question 18: What safeguards would be necessary
to ensure legal certainty and avoid undue delays?
It seems reasonable to expect that this remedy
would be left to the discretion of the courts. Delays could be
dealt with by imposing time limits on the requesting Member State
making the application to the requested Member State, and also
on the requested Member State in issuing its response.
Question 19: Which combination of solutions
do you believe would provide the most appropriate remedy to the
The UK feels that the problems outlined do not
exist to any great extent and therefore any of the solutions considered
would be a disproportionate response to them. It may be that in
the future the lis pendens rule in the Brussels IIa Regulation
may need to be reconsidered, but it would seem premature to do
so now, in the absence of any negative evidence about its operation.
Question 20: Would you suggest any other solution
to solve the problems described in Chapter 2?
No. Not at this time.