To leave or not to leave…..that is the question. An analysis from the perspective of an English Family Lawyer (Part 2)
In the second part of my European Union (EU) blog post I have focused on the concept of applicable law or choice of law, particularly in reference to Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (EU Maintenance Regulation) and Council Regulation (EU) No 1259/210 implementing enhanced cooperation in the area of law applicable to divorce and legal separation (EU Divorce Enhanced Cooperation Regulation).
According to the European Commission glossary, applicable law is a specific concept of private international law across the EU and refers to the national law that governs a given question of law in an international context. A court hearing an action does not necessarily apply its national law to settle the dispute. The law that is actually applicable is determined by the rules of conflict of law. This concept is a feature of the majority of EU family law legislation and has historically been, and remains, an area of contention between the UK and the EU.
The Treaty of Amsterdam brought judicial co-operation in civil matters squarely within the legislative framework of the EU, considered necessary for the proper functioning of the internal market. This includes promoting the compatibility of the rules concerning the conflict of laws and jurisdiction.
The Protocol on the Position of the UK and Ireland, annexed to the Treaty of Amsterdam (the Protocol) provides that the UK in principle shall not take part in the adoption by the European Council (EC) of proposed measures pursuant to title IV of the EC Treaty, which governs visas, asylum, immigration and other policies related to free movement of persons, unless it notifies its decision to opt-in to the adoption of the measure within three months of the presentation of the proposal to the Council. For the first time in 2006, the UK decided to invoke this power, declining to opt-in to three regulation proposals in the field of private international law: maintenance; choice of law in contract; and divorce.
The UK’s decision initially to not participate in the EU Maintenance Regulation was based principally on its objection to the applicable law provisions that the Regulation then contained. However, following the final adoption of the Regulation (as by then amended) in December 2008, the UK formally declared its intention to opt-in.
The UK, again relying on the Protocol, has not adopted the EU Divorce Enhanced Cooperation Regulation, the contents of which is entirely premised on the concept of applicable law by creating a set of harmonised choice of law rules in matrimonial matters.
Substantive law pertaining to matrimonial matters differs widely between Member States. There is equally wide divergence with regard to conflict of laws on the matter, from the systematic use of lex fori (adopting the law of the country in which an action is brought to which the UK subscribes) to the application of the law of the closest connection. The EU has long strived for harmonisation of conflict of law rules relating to divorce in order to increase legal certainty and predictability, preventing the rush to court (lis pendens was discussed in Part One of this EU blog), increasing flexibility and ensuring access to justice.
The UK is hostile to the concept of applicable law for a number of reasons. The EU is comprised of many countries, most of which are of the civil law tradition. The UK is one of a small number of countries that is of the common law tradition. In relation to matters arising from legal separation, the UK courts adopt a unique approach based on fairness and needs. In the area of nuptial agreements, these are largely binding in other EU Member States whereas they are currently not in the UK. Civil law countries appear content for one lawyer to advise both spouses without independent legal advice and sometimes without disclosure. This differs significantly from accepted practice in the UK.
In addition to substantive legal objections, there is also the matter of practicability. The benefits of adopting lex fori are that it is simple and inexpensive. Ascertaining the content of, and applying, foreign laws may be a long, difficult and onerous process. It provides legal certainty for practitioners and arguably litigants, who may not suspect that bringing proceedings in a particular country may not necessarily mean that the substantive law of that country will be applied. A court shall never apply a foreign law as well as its own, which could result (and has) in the misapplication of foreign laws by Judges.
Set out in the Action plan of the Council and the Commission on how best to implement the provisions of the Treaty of Amsterdam on an area of freedom, security and justice (1999/C 190/01), within five years after the entry into force of the Treaty, the Commission were to examine the possibilities to draw up a legal instrument on the law applicable to divorce (Rome III). After the first step on divorce matters taken with Brussels II in the field of jurisdiction and the recognition and enforcement of judgements, the possibilities for agreement on rules determining the law applicable in order to prevent forum shopping was seen to require exploration.
In 2005 the Commission adopted a Green Paper on applicable law and jurisdiction in divorce matters. The Green Paper launched a wide-ranging public consultation on possible solutions for ensuring compatibility of conflict of laws rules in Member States.
The draft Regulation (Rome III) failed to gain unanimity imposing applicable law rules on all EU Member States because of opposition from the UK, among other countries. Only fourteen of the twenty-seven Member States, which already operate a system of applicable law, requested the EU to adopt harmonisation rules similar to Rome III. This resulted in the enactment of the EU Divorce Enhanced Cooperation Regulation.
Examining the content of the EU Divorce Enhanced Cooperation Regulation is beyond the scope of this blog. However, for present purposes it is worthy of note, as it represents a historic first in the EU having made a Regulation under the so called enhanced cooperation process. The Treaty of Amsterdam created the formal possibility of a certain number of Member States establishing enhanced cooperation between themselves on matters covered by the Treaties to which there is not otherwise unanimity of support, using the institutions and procedures of the European Union. The Treaty of Nice sets the minimum threshold for establishing enhanced co-operation at eight Member States.
A further regulation adopted through the enhanced cooperation process is the proposal for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes. This has been in draft since 2011 although it seems that it will now be passed by the end of June 2016. The EU Marital Property Regulation shall not apply to the UK.
The EU Maintenance Regulation came into force on 18 June 2011 with direct effect into English law. It applies to all EU member states with certain exceptions for the UK and Denmark.
The EU Maintenance Regulation is designed to replace the provisions on Council Regulation No (EC) 44/2001 (Brussels I) relating to maintenance obligations. Its principal aim is to enable a maintenance creditor (defined as any individual to whom maintenance is owed or is alleged to be owed) to obtain easily, in a Member State, a decision which will be automatically enforceable in another Member State without further formalities (Recital 9). It also establishes jurisdiction for making decisions relating to maintenance.
In order to increase legal certainty, predictability and the autonomy of the parties (as set out in Recital 19) Article 4 provides that, except in disputes relating to maintenance for a child under the age of 18, the parties may agree jurisdiction for a) the court of a Member State in which one of the parties is habitually resident, b) the court of a Member State in which one of the parties has his/her nationally, c) in disputes between spouses, the court with jurisdiction to deal with the divorce, or the court where the spouses had their last common habitual residence for at least one year.
Chapter III, Article 15 of the EU Maintenance Regulation stipulates that the law applicable to maintenance regulations shall be determined in accordance with the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations in the Member States bound by the Protocol. The UK (like Denmark) is not bound by the Protocol therefore the law applied to maintenance obligations in the English courts will be English law.
The process of exequatur under Brussels I (the need to register a declaration of enforceability) is abolished under the EU Maintenance Regulations for those Member States bound by the 2007 Hague Protocol. For decisions made in Member States not bound by the 2007 Hague Protocol, although no special procedure is required for recognition, unlike the decisions of those Member States bound by the Protocol, a decision shall not be recognised if it is manifestly contrary to public policy in the Member State of enforcement, where it was given in default of appearance (unless the defendant failed to commence proceedings to challenge the decision when it was possible for him to do so), or the decision is irreconcilable (Article 24).
This is undoubtedly good legislation, however similar provisions are provided in the Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance (2007 Hague Convention), to which the UK is bound. The 2007 Hague Convention does not apply within the EU, as the EU Maintenance Regulation takes precedence (Article 69). The 2007 Hague Convention also has the benefit of wider application beyond Europe. The UK supporting the 2007 Hague Convention may encourage other non-EU countries to join up.
The concept of applicable law within EU family legislation is firmly entrenched. If the UK remains in the EU it is likely to be a concept that we continue to oppose, albeit, so far, successfully. If the UK votes to leave the EU, the EU shall be left to further advance its objective to harmonise rules concerning the conflict of laws and jurisdiction across other areas of private international law at least without obstacles created by the UK. Furthermore, I believe that the loss of the EU Maintenance Regulation shall be mitigated by the 2007 Hague Convention.