27 March 2020 - Article
This week I've been reading a book of Aesop fables (beautifully reinterpreted by Michael Morpugo) to my boys. The other morning we enjoyed the Tortoise and the Hare; you will be familiar with the ‘moral'; a helpful one for a mother of too hugely energetic boys – rushing isn't the key to success and having instilled them with this important life lesson before putting my suit on, I was further heartened to see that the ‘moral' was also relevant in answering the first question in the EU Commission's Consultation Paper on the functioning of Council Regulation (EC) No 2201/2003 — the skills learnt at home know no bounds!
At Withers this week we have been thinking about the EU Commission's Consultation Paper on the functioning of Council Regulation (EC) No 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, known as Brussels IIa. The professional support lawyers in our team are responsible for organising and running weekly training events and this week we have been debating the questions raised in the Commission's consultation paper. We are very fortunate that our team includes a number of acclaimed experts in the field of cross jurisdictional divorce in our team and the discussion was punctuated not only with the benefit of their knowledge but by a constant stream of practical examples of the problems that are encountered and overcome in our cross jurisdictional cases. The debate was hugely fascinating, and a brilliant opportunity to share ideas and educate the junior members of our team. It reminded us professional support lawyers why we love our job, but that's for another blog.
So why did this discussion remind me of the Tortoise and the Hare? Brussels IIa sets out the jurisdictional rules that govern which countries Court will determine a divorce. The EU Commission commentary says: “The Regulation includes seven alternative ways to identify the responsible court, based on either habitual residence or the common nationality of spouses. This allows parties to choose between several courts to bring proceedings. In some instances a party may have a specific interest in having the dispute heard by a given court and may ‘rush to court', that is apply for divorce before the other spouse does, to ensure that the law applied in the divorce proceedings will safeguard his or her own interests.'
Brussels IIa introduced a ‘first past the post' system which means that the second court seised with jurisdiction must decline to progress with the case. Hence the ‘rush'. If you're ‘first' you win.
So it was the first question which served to prompt my memory of the Tortoise and the Hare: Do you think Brussels IIa should be revised to reduce the incentive of ‘rushing to court'?
Cross jurisdictional work, within the EU is highly specialised and intellectually demanding, but even my four year old could answer this question. Yes, Brussels IIa should be revised to reduce the incentive of ‘rushing to court'. Rushing just isn't the way to go about life.
Applying that general principle to Brussels IIa though, we need to ask ourselves the following questions. Is it right that the decision to end a marriage, probably agonised over during many months or years, made after engaging in counselling and genuinely trying the best to save the relationship, should be punctuated by a ‘rush to court'? How can that rush do anything other than create animosity and opposition from the start of the proceedings? Certainly in theUKthere is a huge move towards recognition that alternatives to litigation have many positives for continuing family relationships following the divorce. Even within litigation, there are ways of proceeding with courtesy and respect. ‘Ideals' hugely undermined by a rush to be first.
Of course the answer is not as simple as a blanket ‘No to the rush to court'. What alternatives should be put in place? Is it even possible to devise a hierarchy of jurisdictional criteria setting out rules of priority definitively determining the court where the couples' divorce will be heard, which will be acceptable across all the nations of the EU? How would these jurisdictional rules operate within the plethora of other EU countries' national legislation? Shouldn't there be a uniform approach across all relevant EU Regulations, such as the Maintenance Regulation and the Succession Regulation together with Brussels IIa? What are the implications for couples wishing to enter into a pre-nuptial contract electing a court to deal with a subsequent divorce? What happens if they move during their marriage and the country elected is no longer the place where they are habitually resident? Should the election be infinite?
The discussions are fascinating. We will be completing our responses to the consultation this week and look forward to the answers being published later this year.