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THE COMMUNITARIZATION OF DIVORCE RULES: WHAT IMPACT FOR ENGLISH AND SCOTTISH LAW?

Published online by Cambridge University Press:  17 January 2008

Peter Mceleavy
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Abstract

Family law may not be an area one immediately associates with the European Community but in recent years it has rapidly emerged as an important element of the ever-expanding portfolio of the Justice and Home Affairs Directorate General.1 Facilitating the circulation of family law orders through the harmonization of private international law rules is viewed in Community circles as essential if the free movement of persons is to be guaranteed within the European Union.2 The merits of this policy and the manner in which the transformation of the Brussels II Convention3 into a Council Regulation4 was used to acquire wider competence in respect of family law matters have both previously been considered.5 In the present paper such policy considerations are left aside to allow for a detailed analysis of those rules which deal with divorce and their effect on English and Scottish law.

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Articles
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International & Comparative Law Quarterly , Volume 53 , Issue 3 , July 2004 , pp. 605 - 642
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Copyright © British Institute of International and Comparative Law 2004

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References

1 To appreciate the extent of the Community family law agenda reference should be made to the Commission's Bi-annual Update of the Scoreboard to Review Progress on the Creation of an Area of ‘Freedom, Security and Justice’ in the European Union. For the second half of 2003 see COM (2003) 812 final.Google Scholar

2 ‘The Explanatory Report on the Convention drawn up on the basis of Art K.3 of the Treaty on European Union, on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters’ prepared by Borrás, A, OJ 1998 C221, 27 at para 4 [hereinafter: Borr´s Report].Google Scholar

3 Convention drawn up on the basis of Art K.3 of the Treaty on European Union, on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters, OJ 1998 C221, 1–26.Google Scholar

4 Council Regulation (EC) No 1347/2000 of 29 May 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of both Spouses OJ 2000 L160, 19–29.Google Scholar

5 McEleavy, ‘The Brussels II Regulation: How the European Community has Moved into Family Law’ (2002) 51 ICLQ 883–908.CrossRefGoogle ScholarSee also McEleavy, ‘First Steps in the Communitarisation of Family Law: Too Much Haste, Too Little Reflection?’ in Boele-Woelki, K (ed) Perspectives For the Unification or Harmonisation of Family Law in Europe (AntwerpIntersentia 2003), at 509.Google Scholar

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8 Council Regulation (EC) No 2201/2003 of 27 Nov 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, OJ 2003 L338, 1–29.Google Scholar

9 See McEleavy, ‘Brussels II bis: Matrimonial Matters, Parental Responsibility, Child Abduction & Mutual Recognition’ (2004) 53 ICLQ 503.CrossRefGoogle Scholar

10 Unless otherwise stated the new Article numbers have been used throughout in this paper.Google Scholar

11 Denmark has opted out of Title IV of the EC Treaty, and, unlike the United Kingdom and Ireland it cannot selectively opt into initiatives, see McEleavy, (2002) 51 ICLQ op cit n 5, at 900.Google Scholar

12 Recital para 8. By referring to civil proceedings it is also clear that all religious procedures fall outside the scope of the instrument, Borrás Report, op cit n 2, para 20.Google Scholar

13 See below at 627.Google Scholar

14 Act of 21 Dec 2000, Staatsblad 2001 No 9, Art 1.30(1) of the Dutch civil code reads: ‘a marriage can be entered into by two persons of different or same sex.’ For information of the law in English see the Dutch Ministry of Justice website at <http://www.justitie.nl/english/themes/family_law/index.asp/>. See also Waaldijk, K ‘Others May Follow: the Introduction of Marriage, Quasi Marriage and Semi-Marriage for Same-Sex Couples in European Countries’ (2004) New England Law Review 569..+See+also+Waaldijk,+K+‘Others+May+Follow:+the+Introduction+of+Marriage,+Quasi+Marriage+and+Semi-Marriage+for+Same-Sex+Couples+in+European+Countries’+(2004)+New+England+Law+Review+569.>Google Scholar

15 Loi du 13 fevrier 2003 ouvrant le mariage a des personnes de meme sexe et modifiant certaines dispositions du Code civil, Moniteur Beige (Official Gazette), 28 Feb 2003, Ed 3, at 9880–3,Google Scholarsee Fiorini, A ‘New Belgian Law on Same Sex Marriage and Its PIL Implications’ (2003) 52 ICLQ 1039.Google Scholar

16 In response to a question on this point by the MEP Swiebel, J, the JHA Commissioner Mr Vitorino noted that it could not be excluded that divorces of same-sex couples would fall within the scope of the Regulation, OJ 2003 C28, 002.Google Scholar

17 In an amended proposal for a Directive on the Right of Citizens of the Union and their Family Members to Move and Reside Freely Within the Territory of the Member States, 15 Apr 2003, COM (2003) 199 final, the Commission has stated, at para 3.2, that with regard to marriage it was reluctant to opt for a definition of the term ‘spouse’ which makes reference to a spouse of the samesex (the European Parliament had proposed an amendment to that effect, OJ 2004 C43, 42 at 46). However, for the purposes of Staff Regulations the Commission previously announced that same sex marriages would be treated in the same way as any other marriage: OJ 2002 C93,132.Google Scholar

18 Case C-249/96, Grant v South West Trains [1998] ECR 1–621; Cases C-122 and C-125/99P D v Council [2001] ECR 1–4319. At para 34 of the latter decision, delivered 2 months after the entry into force of the Netherlands law, the Court stated that it was generally accepted that the term ‘marriage’ meant a union between two persons of the opposite sex.Google Scholar

19 Cf Art 12, Treaty, EC.Google Scholar

20 See Art 2 of the Act Regulating the Conflict of Laws Regarding Marriage (which implements the 1978 Hague Convention on Celebration and Recognition of the Validity of Marriages). This permissive rule co-exists with a more traditional requirement that capacity to marry be determined according to the national law of each partner. The parties need only comply with the requirements of the latter if they so choose. If they reside in the Netherlands, mere compliance with Dutch law will not give rise to any immediate problems, although if they are resident in a third State prudence would suggest that they should seek to act in accordance with their personal law(s). Under Belgian private international law rules, the marriage has to be allowed by the national law of each partner, see Art 3(3) of the Belgian Civil Code; Decision of the Belgian Cour de Cassation, 23 Feb 1995, Pasicrisie, 1995, 205, Revue Critique de Droit International Privé, 1996, 305, noteGoogle ScholarFallon, M, and Rigaux, F and Fallon, MDroit international privé, Droit positif, (BrusselsLarcier 1993), at 308–11, paras nos 9 et seq.Google Scholar However, in a controversial move a government circular (23 Janvier 2004—Circulaire remplçant la circulaire du 8 mai 2003 relative à la loi du 13 fe´vrier 2003 ouvrant le mariage à des personnes de même sexe et modifiant certaines dispositions du Code civil, Moniteur beige, 27 Janvier 2004) has advised that this rule not be applied if one of the parties is a Belgian national or habitually resident in Belgium, see Sterckx, D ‘Le mariage homosexuel et l'ordre international ministériel’ Journal des Tribunaux, 2004, 390–1. The issue will be resolved in the forthcomng Belgian Code on Private International Law; Article 46(2) of the current version would provide a legal basis for the position advocated in the 2004 Circular.Google Scholar

21 In England and Scotland the recognition of foreign same-sex marriages and indeed registered partnerships has been a subject for academic debate, see for example Murphy, J ‘The Recognition of Same-Sex Families in Britain: The Role of Private International Law’ International Journal of Law, Policy and the Family (2002) 181. The position relating to the latter category will be clarified in the Civil Partnership Bill.CrossRefGoogle Scholar

22 One commentator has argued that in the light of previous jurisprudence concerning polygamous marriages this should not be the case, Norrie, K McK ‘Would Scots Law Recognise a Dutch Same-Sex Marriage?’ (2003) Edinburgh Law Review 147.CrossRefGoogle Scholar

23 See s ll (c) Matrimonial Causes Act 1973 (England & Wales). There is no authority on this matter in Scotland, but the position under the common law is taken to be the same,Google Scholarsee Clive, EThe Law of Husband and Wife in Scotland (4th edn EdinburghW Green 1997), at 76 and ‘Report on Family Law’ Scottish Law Commission, Scot Law C om No 135,1992, para 8.5.Google Scholar

24 Art 22(a).Google Scholar

25 This provision prohibits any review of the jurisdiction of the court of origin and states that the public policy test in Art 22(a) may not be applied, inter alia, to the jurisdiction rules set out in Arts 3–7.Google Scholar

26 Cf Carlier, J-Y, Francq, S, and Van Boxstael, J-L ‘Le règlement de Bruxelles II—Competence, reconnaissance et exécution en matière matrimoniale et en matière de responsabilite parentale’ Journal des tribunaux, Droit Europèen 2001, 73 at 75. The latter also includes a discussion of whether registered partnerships, such as exist in many continental European States, could be said to fall within the scope of the instrument,Google Scholarsee also: Watté, N and Boularbah, H ‘Les nouvelles règies de conflit de juridictions en matière de désunion des époux—le règlement communautaire ‘Bruxelles II’’ Journal des tribunaux 2001, 369, at 370.Google Scholar

27 Para 4 of the Recital to Brussels II chooses the slightly more vague formulation: ‘unifying the rules of conflict of jurisdiction …’ The legal basis for all the Brussels Regulations, Art 65 EC Treaty, is of course limited to civil matters which have cross border implications. However it may be noted that the Recital to Brussels II bis is silent on these issues.Google Scholar

28 Under the Brussels I Regulation, Arts 22, 23, and 24 respectively.Google Scholar

29 This absence of exclusivity is particularly notable where the spouses share a common Member State nationality or domicile, in the case of the United Kingdom or Ireland, since it is immediately apparent that the inclusion of Art 3(l)(a)(d) and Art 3(l)(b) does not square with the drafting of Art 6.Google Scholar

30 See the Domicile and Matrimonial Proceedings Act 1973 as amended, s 5(2)(b), (England & Wales) and s 7 (2A)(b), (Scotland).Google Scholar

31 Art 3(l)(a)and(c).Google Scholar

32 Domicile and Matrimonial Proceedings Act 1973, s 5(2)(b),(England & Wales) and s 7 (2A)(b), (Scotland).Google Scholar

33 Commentators have argued in favour of both approaches; see Carlier, Francq and van Boxstael, op cit n 26, at 78 et seq,Google Scholar in favour of a wide interpretation of the ex Art 7 and Watté, and Boularbah, , op cit n 26, at 372;Google ScholarHausmann, R ‘New International Procedure in Matrimonial Matters in the European Union’ The European Legal Forum (2000/2001) 271, at 278Google Scholarand de Boer, Th M ‘Jurisdiction and Enforcement in International Family Law: A Labyrinth of European and International Legislation’ (2002) NILR 307, at 339;Google Scholar who argue that the ex Art 7 has a more limited effect. See generally the discussion in Fallon, M ‘The Value Added by a European Union Instrument on Jurisdiction and the Enforcement of Judgments in Matrimonial Causes in the light of Existing Conventions’ Commission of the European Communities, 1995, at 53 et seq.Google Scholar

34 The difficult cases arise in respect of such marriages given the special jurisdictional provision in Art 3(l)(b) for spouses of common nationality/domicile.Google Scholar

35 The existence of a habitual residence within one of the Member States would guarantee the application of at least one of the Art 3 grounds of jurisdiction.Google Scholar

36 European Communities (Matrimonial Jurisdiction and Judgments) Regulations 2001 No 310, rule 3, European Communities (Matrimonial Jurisdiction and Judgments) (Northern Ireland)Regulations 2001, No 660, rule 3(2). Exactly the same result is achieved in the European Communities (Matrimonial Jurisdiction and Judgments) (Scotland) Regulations 2001, No 36, see below.Google Scholar

37 This is reinforced by the implicit obligation on courts to verify their exercise of jurisdiction under Art 17.Google Scholar

38 The terms of the latter provision will however lead to some unexpected results. For example, an English domiciled wife who has been living in France would not be able to return to England and petition for divorce immediately from her New York resident and domiciled American husband on the basis of her English domicile. Although the husband is not afforded any protection by the Regulation, the wife falls foul of the fact that she could, under the Regulation, bring proceedings in France. To commence proceedings in England immediately the wife would have to establish that she had lost her French habitual residence, thereby ending the possibility of proceedings being brought in France under Art 3.Google Scholar

39 An equivalent provision is found in Art 4(2) of the Brussels I Regulation, see Collins, LThe Civil Jurisdiction and Judgments Act 1982 (LondonButterworths 1983), at 49 et seq.Google Scholar

40 The Borrás Report, op cit n 2, para 47, indicates that this would include Germany, Spain, France, Sweden, and Italy.Google Scholar

41 Art 3(l)(a)(v) of the Council Regulation. The wife in the example could use her domicile to issue proceedings in Ireland, s 39(1) of the Family Law (Divorce) Act 1996, but of course unders 5(l)(a) of the same Act her ability to issue a petition would depend on her being able to prove that she had lived apart from her husband for a period of, or periods amounting to, at least 4 years during the previous 5 years.Google Scholar

42 For a criticism of this rule in the context of the 1968 Brussels Convention see Jeunger, F ‘La Convention de Bruxelles du 27 septembre 1968 et la courtoisie internationale: Réflexions d'un Américan’ Revue critique de droit international privé 1983, at 37.Google ScholarGaudemet-Tallon, Cf H ‘Les Frontieres Extérieures de l'Espace Judiciare Européen: Quelques Repères’, in Borrás, A et al. (eds) E Pluribus Unum (The HagueKluwer 1996), at 85.Google Scholar

43 European Communities (Matrimonial Jurisdiction and Judgments) Regulations 2001 No 310, rule 3. European Communities (Matrimonial Jurisdiction and Judgments) (Scotland) Regulations 2001, No 36, rule 2.Google Scholar

44 See Domicile and Matrimonial Proceedings Act 1973, s 5(2)(b). The same effect is achieved in Scotland by ss 7(2A)(b) and 12(5)(d). To avoid any ambiguity it may have been preferable had ss 5(2)(b) and 12(5)(d) specified jurisdiction as being under ex Art 2 [new Art 3] of the Council Regulation.Google Scholar

45 Ibid, s 7(2A)b.

46 See McEleavy, ‘Matrimonial Jurisdiction and Judgments—The New Law’ Green's Family Law Bulletin Mar 2001, 3.Google Scholar

47 European Communities (Matrimonial Jurisdiction and Judgments) (Scotland) Regulations 2001, No 36.Google Scholar

48 The English and Northern Irish statutory instruments, while they do not employ the concept of an ‘excluded action’, produce the same result as both only allow recourse to domicile as a basis of jurisdiction where no court of a Contracting State has jurisdiction under the Regulation. It may be noted that the United Kingdom is specifically referred to in the list of Contracting States identified in the statutory instruments.Google Scholar

49 ‘Domestic divorces’ do of course fall within the scope of the Regulation's recognition and enforcement regime, see below at 633Google Scholar

50 See the six grounds of jurisdiction founded on habitual residence in Art 3(l)(a).Google Scholar

51 See the Domicile and Matrimonial Proceedings Act 1973 as amended, s 5(2)(b), (England & Wales) and s 7 (2A)(b), (Scotland).Google Scholar

52 See Scottish Law Commission ‘Family Law: Report on Jurisdiction in Consistorial Causes Affecting Matrimonial Status’ Report No 25,1972 and Law Commission ‘Family Law: Report on Jurisdiction in Matrimonial Causes’ Report No 48,1972.Google Scholar

53 See figures cited in McEleavy, (2002) 51 ICLQ op cit n 5, at 888, n 28.Google Scholar

54 Under Art 4 a court in which proceedings are pending on the basis of Art 3 shall also have jurisdiction to examine a counterclaim, insofar as the latter comes within the scope of this Regulation.Google Scholar

55 For a defence of a non-hierarchical structure to the jurisdiction rules, see M Jänterä-Jareborg ‘Marriage Dissolution in an Integrated Europe: The 1998 European Union Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (Brussels II Convention)’ Yearbook of Private International Law 1999, 1, at 8. An alternative formulation of the jurisdictional rules has been proposed by de Boer, op cit n 33, at 316.Google Scholar

56 Art 3(l)(a)(i). From a practical, as opposed to a conceptual, perspective it might be questioned whether the first and indeed fourth grounds are not in reality redundant given the inclusion of the defendant's place of habitual residence as a basis of jurisdiction.Google Scholar

57 Art 3(l)(a)(iv).Google Scholar

58 Art 3(l)(a)(iii).Google Scholar

59 Art 3(l)(a)(ii).Google Scholar

60 Art 3(l)(a)(v).Google Scholar

61 This depends on whether the applicant happens to be linked by nationality/domicile with that jurisdiction, Art 3(l)(a)(vi). The Borrás Report, op cit n 2, para 32, notes that this provision was the result of a late compromise reached in December 1997. Nationality is the connecting factor used by the continental Member States, domicile by the United Kingdom and Ireland.Google Scholar

62 Pirrung, J ‘Unification du droit en matière familiale: la Convention de l'Union européenne sur la reconnaissance des divorces et la question de nouveau travaux d'UNIDROIT’ Uniform Law Review (1998) 629, at 633.Google Scholar

63 Art 3(l)(a)(ii).Google Scholar

64 No guidance is provided as to how the consequences of dual nationality should be resolved: Borrás Report, op cit n 2, para 33.Google ScholarSee generally on this issue: Case 369/1990, Micheletti [1992] ECR 4231–4239;Google ScholarGaudemet-Tallon, H ‘Le Reglement no 1347/2000 du Conseil du 29 mai 2000: “Competence, Reconnaissance et Execution des Decisions en Matiere matrimoniale et en Matiere de Responsabilite Parentale des Enfants Communs’” (2001) Journal de Droit International 381, at 393;Google Scholarde Boer, , op cit n 33, at 315;Google Scholarand Hausmann, , op cit n 33, at 277.Google Scholar

65 For a French example see Colmar, CA, 2 Sep 2002, RG No 02/00370, Procedures (2003), comm No 137, note Nourissat, C. For a general discussion of joint nationality as a basis of jurisdiction, see Fallon, op cit n 33 at 46.Google Scholar

66 This criticism can also be made in respect of Art 3(l)(a)(vi). A reference has been made to the ECJ as to the compatibility of Brussels II with Art 12 by the Oberlandesgericht Miinchen, 14 Oct 2002, 26 UF 1858/01. See generally: Hau, W ‘Das System der internationalen Entscheidungszustandigkeit im europaischen Eheverfahrensrecht’ Zeitschrift fur das gesamte Familienrecht (2000) 1333, at 1335;Google ScholarSchack, H ‘The New International Procedure in Matrimonial Matters in Europe’ (2002) European Journal of Law Reform 37 at 45,Google ScholarFallon, op cit n 33, at 47;Google Scholarandde Boer, , op cit n 33, at 341. In the context of relations with other instruments, reference is made to the principle of non-discrimination based on nationality, see Art 59(2)(b).Google Scholar

67 Cf Art 23 of the Brussels I Regulation. Brussels II bis makes express provision for spouses to agree on jurisdiction in matters relating to parental responsibility, see Art 12.Google Scholar

68 Borrás Report, op cit n 2, para 13B. A similar exclusion applies to jurisdiction being established on the basis of the voluntary appearance of a respondent, op cit, para 28.Google Scholar

69 The position is in no way changed if the parties seek to fix jurisdiction in a Member State in which they are entitled to divorce under Art 3. The obvious example is where a couple of joint nationality or domicile, but resident in a different Member State, agree to divorce in their State of nationality/domicile. Such an agreement would not prevent one of the spouses subsequently petitioning for divorce in the State of habitual residence, in accordance with Art 3, and if the latter court were seised first in time it would have to hear the application.Google Scholar

70 Such a basis of jurisdiction is already available in some Member States, for example Italy, see Law of 31 May 1995, Art 4; Gazetta Ufficiale della Repubblica italiana, 3 June 1995, Ordinary Supplement No 128, General Series. Translated into French in the Revue Critique de Droit Internationale Privé 1996,174.Google Scholar

71 This could of course be circumvented by a rule allowing an agreement to be made only within 6 months of the initiation of the divorce proceedings.Google Scholar

72 Notably this is provided for in Art 4(3) of the Italian Law of 31 May 1995. Cf Art 15, Brussels II bis.Google Scholar

73 In England and Wales prenuptial agreements seeking to regulate the financial consequences of a marriage will not oust the jurisdiction of the court in making a settlement, nevertheless it is likely that regard will be paid to the terms of the agreement, see M v M (Prenuptial Agreement) [2002] 1 FLR 654, K v K (Ancillary Relief: Prenuptial Agreement) [2003] 1 FLR 120. In contrast, in Scotland marriage contracts which could oust the jurisdiction of the court were at one time common, see Thomson v Thomson, 1981 SC 344 and the discussion in Clive op cit n 23, at 312 et seq.Google Scholar

74 In contrast to Art 17 of the 1968 Brussels Convention, provision is now made for non-exclusive jurisdiction clauses in Art 23 of the Brussels I Regulation.Google Scholar

75 In this one might envisage spouses' choice being restricted to the State of nationality/domicile of either party or even a State of common habitual residence where that habitual residence had endured for a significant period of time. The choice could even have been limited to grounds available under the Regulation, eg the State of common nationality/jurisdiction of common domicile.Google Scholar

76 Section 5(2) (England & Wales), s 7(2) Scotland.Google Scholar

77 Cf Ikimi v Ikimi [2001] EWCA Civ 873, [2001] 2 FCR 385.Google Scholar

78 See, eg, Armstrong v Armstrong [2003] EWHC 777 (Fam), [2003] 2 FLR 375; Ikimi v Ikimi [2001] EWCA Civ 873, [2001] 2 FCR 385; D v D, 2002 SC 33; Mozes v Mozes, 239 F 3d 1067 (9th Cir 2001); and Tsarbopoulos v Tsarbopoulos, 176 F Supp 2d 1045 (ED Wash 2001).Google Scholar

79 See generally Beaumont, P and McEleavy, PThe Hague Convention on International Child Abduction (OxfordOUP 1999), at 88 et seq,Google Scholarand Rogerson, p ‘Habitual Residence: The New Domicile?’ (2000) 50 ICLQ 86.CrossRefGoogle Scholar

80 A divergence confirmed in Gingi v Secretary of State for Work and Pensions [2002] 1 CMLR 20.Google Scholar

81 [1990] 2 AC 562.Google Scholar

82 [1999] 4 All ER 677.Google Scholar

83 Ibid, at 682.

84 Case C90/97, [1999] ECR 1–1075.Google Scholar

85 Art 59.Google Scholar

86 It is not argued that such an interpretation should be applied to the determination of the habitual residence of children for jurisdictional purposes,Google Scholarsee Beaumont, and McEleavy, , op cit n 79, at 112.Google Scholar

87 In this it may be noted that Lord Slynn did note in Nessa that something less than a period of time might be sufficient where a previous habitual residence was being resumed, at 683.Google Scholar

88 See Report of the House of Lords' Select Committee on the European Communities ‘Brussels II: The Draft Convention on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters’ HL Paper 19, Session 1997–8, at 12. The 1970 Hague Convention on the Recognition of Divorces and Legal Separations merely provides that proceedings for divorce or legal separation in any Contracting State may be suspended when proceedings relating to the matrimonial status of either party to the marriage are pending in another Contracting State (Art 12). Professor Anton, a member of the United Kingdom delegation which participated in the sessions during which the instrument was elaborated, noted that opponents of a mandatory clause feared that such a provision could ‘encourage pre-emptive proceedings taken with a view to obstructing the other spouse’, see Anton, AE ‘The Recognition of Divorces and Legal Separations’ (1969) 18 ICLQ 620, at 634.Google Scholar

89 See McEleavy, (2002) 51 ICLQ op cit n 5, at 889,Google ScholarFallon, op cit n 33, at 44.Google Scholar

90 Cf Art22(d).Google Scholar

91 Art 16 provides the definition as to when a court will be seised. This was previously contained within the lis pendens provision, see ex Art 11(4).Google Scholar

92 See Borras Report, op cit n 2, para 52 et seq and Gaudemet-Tallon, op cit n 64, at 399 et seq.Google Scholar

93 Ex Art 11(1) and (2).Google Scholar

94 Borrás Report, op cit n 2, para 54.Google Scholar

95 Ibid n 2 para 52. Jantera-Jareborg, op cit n 55, at 17.

96 Ibid n 55, at 17.

97 December 1997, see Borrás Report, op cit n 2, para 55.Google Scholar

98 See generally Gaudemet-Tallon, , op cit n 64, at 403.Google Scholar

99 [1992] ch 72. The doubt surrounding this decision undoubtedly having increased following the comments of Lord Bingham in Lubbe v Cape PLC [2000] 1 WLR 1545 at 1562, see RFentiman ‘Stays and the European Conventions—End Game’ [2001] CLJ 10. Moreover, recent ECJ case law provides little comfort to those who would support the Harrods approach, see Case C-159/02, Turner v Grouit, 27 Apr 2004.Google Scholar

100 As amended by the SI 2001/310 European Communities (Matrimonial Jurisdiction and Judgments Regulations), Reg 4. A corresponding provision is not found in the SSI 2001 No 36, European Communities (Matrimonial Jurisdiction and Judgments) (Scotland) Regulations 2001.Google Scholar

101 This will lead to some most unfortunate results. If an English domiciled woman leaves her South African husband in Cape Town and returns to London, she would be able to petition for divorce immediately on the basis of her domicile. The husband would also be able to apply for the application to be stayed. However, were the wife to wait for say 7 months before making her application, jurisdiction would exist under Art 3(l)(a)(vi) of the Regulation and she would have to proceed on that ground. This would bring her the advantage of preventing her husband from making an application for a stay; a situation where the new rules may actually encourage delay rather than haste in the conduct of litigation!Google Scholar

102 Schedule 1, para 8 (England & Wales), Schedule 3, para 8 (Scotland).Google Scholar

103 De Dampierre v De Dampierre [1988] 1 AC 92.Google Scholar

104 Five of the eight cases reported in the last 10 years fall into this category: Mitchell v Mitchell, 1994 SC 803, R v R. (Divorce: Stay of Proceedings) [1994] 2 FLR 1036, Butler v Butler [1998] 1 WLR 1208, S v S (Divorce: Staying Proceedings) [1997] 1 WLR 1200; Otobo v Otobo [2002] EWCA Civ 949, [2003] 1 FLR 192,; Cf A v A (Forum Conveniens) [1999] 1 FLR 1, C v C (Divorce: Stay of English Proceedings) [2001] 1 FLR 624; Armstrong v Armstrong [2003] EWHC 777 (Fam), [2003] 2 FLR 375.Google Scholar

105 See Jayme, E ‘Le Droit International Privé du Nouveau Millénaire: La Protection de la Personne Humanine Face à la Globalisation’ Receuil des Cours vol 282, 2000, 19, at 24. Cf comments of Thorpe LJ in Wermuth v Wermuth [2003] EWCA Civ 50, para 3, [2003] 1 WLR 942.Google Scholar

106 See oral evidence of Karsten, Ian QC to the House of Lords' Select Committee, op cit n 88, at 27 and also the comments of Munby, J in Block v Block [2002] EWHC 1711 (Fam) at para 2, [2003] 1 FLR 1Google Scholar

107 Matrimonial Causes Act 1973, s 23(1) (England); Family Law (Scotland) Act 1985, s 8 (Scotland).Google Scholar

108 See Art 5(2). The exception that jurisdiction must not be based solely on the nationality of one of the parties can never apply given the formulation of Art 3 of the Brussels II Regulation. Jurisdiction under the Regulation may of course also be brought in accordance with Arts 24, 23, and 3.Google Scholar

109 Parties here can exploit the lack of uniformity as to the choice of law rules to be applied in respect of ancillary relief actions within the EU. Only twelve of the twenty-five Member States are party to the Hague Convention of 2 Oct 1973 on the Law Applicable to Maintenance Obligations, while only five are party to the Hague Convention of 14 Mar 1978 on the Law Applicable to Matrimonial Property Regimes. In respect of the differences between England and France for example, see the discussion in De Dampierre v De Dampierre [1988] 1 AC 92 and C v C (Divorce: Stay of English Proceedings) [2001] 1 FLR 624. However, in the Biannual Update of the Scoreboard to Review Progress on the Creation of an Area of ‘Freedom, Security and Justice’ in the European Union, for the Second Half of 2003, COM (2003) 812, it is noted that preparatory studies have already been commenced with regard to harmonizing the rules on jurisdiction and the l aw applicable to matrimonial property.Google Scholar

110 The rules pertaining to England and Wales.Google Scholar

111 The rules pertaining to Scotland.Google Scholar

112 Under s 17 a court could make any one or more of the orders which it could make under Part II of the Matrimonial Causes Act 1973 if a decree of divorce, nullity or judicial separation in respect of a marriage had been granted in England and Wales. Under s 29(1) and (2) Scots law will apply as it would apply if the application were being made in an action for divorce in Scotland, at the date on which the foreign divorce took place. However, significant limitations would apply under Part III and Part IV, ss 20 and 29(5) respectively, if jurisdiction existed solely from an interest in a matrimonial home located in the jurisdiction, ss 15(l)(c) and 28(2)(b)(iii) respectively.Google Scholar

113 Section 15(1).Google Scholar

114 Section 13.Google Scholar

115 Section 28(2).Google Scholar

116 This could extend to cover periodical payments or a lump sum if the latter is to serve as maintenance: Case C-220/95, Van den Boogaard v Laumen [1997] QB 759, [1997] ECR 1–1147. Furthermore, a maintenance creditor may be an individual making an application for the first time, see Case C-295/95, Farrell v Long [1997] QB 842, [1997] ECR 1–1683.Google Scholar

117 Jurisdiction could therefore be exercised under Arts 24, 23, 2 or 5(2), (as found in the Brussels I Regulation).Google Scholar

118 Section 28(3).Google Scholar

119 Section 16. This is to be carried out in accordance with the doctrine of forum conveniens, Holmes v Holmes [1989] Fam 47.Google Scholar

120 Lamagni v Lamagni [1995] 2 FLR 452, at 454.Google Scholar

121 [1989] Fam 47.Google Scholar

122 At 57.Google Scholar

123 Jordan v Jordan [2000] 1 WLR 210, [1999] 2 FLR 1069; A. v S (Financial Relief After Overseas US Divorce and Financial Proceedings) [2002] EWHC 1157, [2003] 1 FLR 431.Google Scholar

124 See oral evidence of Ian Karsten QC to the House of Lords' Select Committee, op cit n 88, at 29, para 99.Google Scholar

125 Law Commission Working Paper, No 77 ‘Financial Relief After Foreign Divorce’ 1980, para 29. See also Law Commission, Report No 117 ‘Family Law: Financial Relief After Foreign Divorce’ (1982), and Scottish Law Commission, Report No 72 ‘Family Law: Report on Financial Provision After Foreign Divorce’ (1982).Google Scholar

126 See comments of Thorpe, LJ, albeit in a different context, in Wermuth v Wermuth [2003] EWCA Civ 50, para 34, [2003] 1 WLR 942.Google Scholar

127 Watté, N and Boularbah, H ‘Le règlement communautaire en matière matrimoniale et de responsabilité parentale (Règlement dit “Bruxelles II” )’ (2000) Revue trimestrielle de droit familial 539, at 577 et seq.Google Scholar

128 See generally Case C-261/90 Reichert v Dresdner Bank (No 2) [1992] ECR I 2149 and Case C-391/95 Van Wen Maritime BV v Firma Deco-Line [1998] ECR 1–7091.Google Scholar

129 As to the interpretation of ‘urgent’ see Lagarde, P Explanatory Report of the 1996 Hague Convention, Actes et Documents of the Eighteenth Session, vol II, at 535 para 68;Google ScholarWatté, and Boularbah, , op cit n 127, at 581.Google Scholar

130 In contrast an early Brussels I case had held that any measures taken under Art 24 must relate to matters within the scope of the instrument, see Case 143/78 De Cavel v De Cavel (No 1) [1979] ECR 1055, para 9.Google Scholar

131 Boreás Report, op cit n 2, para 59.Google Scholar

132 See Clive, E Memorandum to the European Communities Committee, House of Lords' Report, op cit n 23, at 7, para 2.14.Google Scholar

133 [2003] EWCA Civ 50, [2003] 1 WLR 942.Google Scholar

134 Were it not for the drafting of an earlier order, it is to be presumed that the application would have been brought under Art 31 of the Brussels I Regulation, that instrument having jurisdiction for maintenance matters. This issue was not specifically addressed in the judgment.Google Scholar

135 At para 34.Google Scholar

136 Above at 628.Google Scholar

137 Art 21(1). See Art 26(1) Brussels Convention and Art 33(1) Brussels I Regulation.Google Scholar

138 Borrás Report, op cit n 2, para 66, notes that this concept, which should be interpreted broadly in accordance with the applicable national law, might include the public prosecutor or equivalent in the State in which the judgment is to be recognized or contested.Google Scholar

139 Notwithstanding the terms of para 3, the fact of there being recognition as of law does have practical relevance for those States in which there are civil status records, for para 2 of Art 21 confirms that no special procedure shall be required for updating such records on the basis of a matrimonial judgment being given in another Member State, provided no further appeal lies against the judgment under the law of that State. In the absence of an explanation as to what is meant by ‘no further appeal’ it has been submitted that guidance should be sought from the ex Art 20 [Art 27], see Gaudemet-Tallon, op cit n 64, at 407. Under the terms of the latter provision, a court of a Member State in which recognition is sought of a judgment given in another Member State may stay the proceedings if an ordinary appeal against the judgment has been lodged. Where the judgment is given in Ireland or the United Kingdom, Art 27(2) states that the court in the State of recognition may grant a stay if enforcement is suspended in the Member State of origin by reason of an appeal.Google Scholar

140 Art 22.Google Scholar

141 It should also be noted that where recognition is raised as an incidental question in a court of a Member State, that court may determine the issue, Art 21(4).Google Scholar

142 Under Art 3 (l) (b).Google Scholar

143 Borrás Report, op cit n 2, para 80.Google Scholar

144 Reference should also be made to the documentary requirements set out in Section 3.Google Scholar

145 1991, SI 1247.Google Scholar

146 R 7.48(2) sets out two minor exceptions. The registration mechanism is contained in rules 7.42–7.46.Google Scholar

147 Section 55(l)(e). In Scotland, where courts have a general declaratory power, there is no statutory provision for making such a declaration, see Clive, op cit n 23, at 591 and ‘Report on Family Law’ Scottish Law Commission, Scot Law C om No 135 (1992) para 9.6.Google Scholar

148 This gives effect to Art 11 of the 1970 Hague Convention on the Recognition of Divorces and Legal Separations.Google Scholar

149 The United Kingdom, Channel Islands, and Isle of Man.Google Scholar

150 See s 45 (2).Google Scholar

151 Under the application of the dual domicile rule.Google Scholar

152 Although different reasons were put forward, this was the conclusion reached by the Court of Appeal in Lawrence v Lawrence [1985] Fam 106.Google Scholar

153 See written evidence of Professor Hartley to the House of Lords' Select Committee, op cit n 88, at 11.Google Scholar

154 Anton notes that this objection had been put forward during the drafting of the 1970 Hague Convention, but had b e en overruled as being of ‘a technical character’, op cit n 88, at 639.Google Scholar

155 Art 49.Google Scholar

156 Art 46. Cf ex Art 13(3).Google Scholar

157 Op cit n 2, para 60.Google Scholar

158 Ancel, B and Watt, H Muir ‘La Desunion Europeenne: le Reglement dit “Bruxelles II”’ (2001) Revue Critique de Droit International Prive 403, at 436,Google ScholarGaudemet-Tallon, , op cit n 64, at 406.Google ScholarCf de Boer, , op cit n 33, at 325.Google Scholar

159 Ancel, and Watt, Muir, op cit n 158, at 437.Google Scholar

160 See above at 611.Google Scholar

161 Under Art 16 of Brussels II there was the possibility for a Member State to enter into an agreement with a non-Member State to the effect that the Member State would not recognize judgments made in other Member States where jurisdiction had been taken on a basis other than in Arts 2–7. Other than it being unlikely that States would avail of such a power in respect of matrimonial matters, it is unclear how this provision, unlike Art 59 of Brussels I, managed to survive the transformation of the Convention into a Council Regulation (cf Proposal for a Council Regulation on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for joint children, 4 May 1999, COM (1999) 220 final). Notably there is no such provision in Brussels II bis, so having adopted common rules in respect of matrimonial and parental responsibility matters, the Community has preserved its exclusive external competence, with the effect that Member States have lost their freedom to undertake obligations independently with third States which affect those rules, see Case 22/70 Commission v Council (ERTA) [1971] ECR 263.Google Scholar

162 This issue has provoked a high degree of concern, see House of Lords' Select Committee Report, op cit n 88, at 16.Google Scholar

163 Sees 46.Google Scholar

164 The wife in the example not being protected under the terms of Art 6, jurisdiction could be taken on the basis of French national law and the resultant judgment would have to be recognized under the Regulation. The pre-2001 British recognition rules remain applicable to all divorces, separations and marriage annulments which do not fall to be recognized under the Council Regulation: Family Law Act 1986, s 45(2).Google Scholar

165 The strictness of the recognition regime means that any challenge to the judgment should be made in the State of origin.Google Scholar

166 Continental Bank NA v Aeakos Cia Naviera SA [1994] 2 All ER 540, OT Africa Line v Hijazy and others (the Kribi) [2001] 1 Lloyd's Rep 76, cf Case C-116/02, Erich Gasser GmbH v MISAT Srl, 9 Dec 2003 and Case C-159/02 Turner v Grovit, 27 Apr 2004.Google Scholar

167 The Brussels II Convention had contained a limited, but controversial exception to this provision allowing Irish courts to refuse recognition where the parties had acted fraudulently in respect of establishing jurisdiction in the State of origin. However, the Irish Declaration was not included within the Brussels II Regulation, see Borrás Report, op cit n 2, para 129 and Jänterä-Jareborg, op cit n 55, at 22Google Scholar

168 Art 22(a).Google Scholar

169 This is the consequence of the ECJ ruling in Case C-7/98 Krombach v Bamberski [2000] ECR 1–1935, with regard to Arts 27(1) and 28 (3) of the 1968 Brussels Convention.Google Scholar

170 Art 26. Cf Case C-7/98 Krombach v Bamberski [2000] ECRI-1935.Google Scholar

171 Jänterä-Jareborg, op cit n 55, at 23.Google Scholar

172 As with the other restrictions Art 25 will be applicable whether jurisdiction is taken on one of the bases specified in the Regulation or under national law.Google Scholar

173 Art 24.Google Scholar

174 Art 25.Google Scholar

175 See Case C-7/98 Krombach v Bamberski [2000] ECR 1–1935, discussed below.Google Scholar

176 Art 34(1).Google Scholar

177 Case 145/86 Hoffmann v Krieg [1988] ECR 645, para 21, and Case C-78/95 Hendrikman and Feyen v Magenta Druck & Verlag [1996] ECR 1–4943, para 23.Google Scholar

178 Case C-7/98 [2000] ECR 1–1935.Google Scholar

189 Ibid, para 37.

180 Kendall v Kendall [1977] Fam 208, Joyce v Joyce [1979] Fam 93.Google Scholar

181 Eroglu v Eroglu [1994] 2 FLR 287, Tahir v Tahir, 1993 SLT 194, Syed v Ahmed, 31 Mar 2004, Outer House, Court of Session.Google Scholar

182 Art22(b).Google Scholar

183 Art 18(2) provides that Art 19 of Council Regulation No 1348/2000 on the service of documents will take precedence if the relevant document had to be transmitted from one Member State to another pursuant to that Regulation. If the relevant documents had to be sent to a non-Member State and the 1965 Hague Convention on Service applies, then Art 15 of that instrument shall apply, see Art 18(3).Google Scholar

184 Ancel, B ‘The Brussels I Regulation: Comment’ Yearbook of Private International Law (2001) 101, at 112.Google ScholarSee also Carlier, Francq, & Boxstael, Vanop cit n 26, at 88.Google Scholar

185 Op cit n 2, para 70.Google Scholar

186 Case C-305/88 Lancray v Peters [1990] ECR 1–2725.Google Scholar

187 See, eg, Case C-305/88 Lancray v Peters [1990] ECR 1–2725.Google Scholar

188 The amendments to the equivalent provision in the Brussels I Regulation, Art 34, have gone further, in that the ground of non-recognition is invalidated if the defendant failed to commence proceedings to challenge the original judgment when it was possible for him to do so. Cf Case C-123/91 Minalmet GmbH v Brandeis Ltd. [1992] ECR 1–5661.Google Scholar

189 See ss 51(3)(c)(i) and 51 (3)(c)(ii). Under these provisions the court seised of the recognition application retains a very high degree of discretion to evaluate the manner in which notice had or should have been given, as well as the opportunity which had been afforded or should have been afforded to the respondent to take part in the original proceedings. If it is found in either case that reasonable steps have not been taken, then recognition may be refused.Google Scholar

190 When comparison is made with Art 22(d), it is clear that judgment in this context must mean one that is earlier or later.Google Scholar

191 Case C-80/00 Italian Leather SpA v WECO Polstermobel GmbH & Co [2002] ECR 1–4995, considering the operation of Art 27(3) of the 1968 Brussels Convention. This is in contrast to the discretion available to UK courts under ss 51(1) and (2) of the Family Law Act 1986.Google Scholar

192 Jenard Report on the Brussels Convention, OJ 1979 C 59, 1, at 45.Google Scholar

193 Ancel, and Watt, Muir op cit n 158, at 447.Google Scholar

194 This definition of irreconcilability was provided by the ECJ in Case 145/86 Hoffmann v Krieg [1988] ECR 645, para 22.Google Scholar

195 Op cit n 2, para 70.Google Scholar

196 See North, P and Fawcett, JCheshire & North's Private International Law (13th edn LondonButterworths 1999), at 503 et seq.Google Scholar

197 Anton, op cit n 88, at 620.Google Scholar

198 Bremner, C ‘Chirac and Schroder Revive Their Old Pals’ The Times 16 Oct 2003, at 21.Google Scholar