Select Committee on European Union Fortieth Report


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 bodies:

    —  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).

    —  "Resolution" (formerly Solicitors Family Law Association).

    —  The Association of District Judges.

    —  The Law Society.

  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 fori).

  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

Annex A


  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" divorces?

  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 such solution?

  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 new Instrument.

Question 3:  What would be the most appropriate connecting factors?

  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 there.

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 shopping—albeit applied locally—potentially 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 law?

  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 solution?

  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 cases?

  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 19—the "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 in agreement.

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, habitual residence).

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 example.

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 situations described?

  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.

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