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Divorce & Foreign Affairs

Clare Renton, of 29 Bedford Row, examines recent cases involving divorces with a foreign element

picture of clare renton

Clare Renton, 29 Bedford Row

Brussels II Revised
In Wermuth v Wermuth [2003] 1 FLR 942 Thorpe LJ said,

"We must espouse the Regulation and apply it wholeheartedly. We must not take or be seen to take opportunities for usurping the function of the Judge in the other Member State. Once another jurisdiction is demonstrated to be apparently first seised this jurisdiction must defer by holding itself in waiting in case that apparent priority should be disapproved or declined"

A raft of recent cases show that the view of Thorpe L.J. prevails and that autonomous European concepts are evolving in the divorce jurisdiction.

Habitual Residence: The Autonomous Definition
In a further contested round of litigation in the case of L-K v K (2006) EWCH 3280 Singer J considered the husband's argument that the English Court had no jurisdiction over the wife's English petition founded on joint habitual residence in England.

The French Cour d'Appel had dismissed the husband's appeal against the decision that the English Court was first seised. Accordingly, England was the appropriate arena unless the husband mounted a successful challenge to the issue of English habitual residence. Of importance was the issue of definition of habitual residence. The husband in his French requete stated that in 2005 the spouses had "set up home in London." The purpose of moving to London from Tokyo was for the husband to pursue his City career. The duration of their stay was indefinite but was for a settled purpose.

Singer J addressed the wife's argument that the question of habitual residence for the purposes of the Brussels Regulation was an autonomous definition. European authorities tended to demonstrate far less emphasis on the requirement which English law has developed that there needs to be an appreciable period of time before a person can become habitually resident in this country. He decided that in terms of the autonomous definition the husband and wife became habitually resident in England by late March 2005 having arrived in late January 2005. Singer J went on to find that in this particular case the parties were also habitually resident within the English definition.

Multiplicity of Proceedings: Brussels I and Brussels II Revised
In Prazic v Prazic [2006] 2 FLR 1128, the parties had during their marriage acquired two flats in Notting Hill. They later went to live in France. The husband's petition in France was first in time and the wife's English petition was stayed. The wife issued proceedings under the Trusts of Land and Appointment of Trustees Act 1996 ("TOLATA") , seeking a declaration that she was an equal beneficial owner of the two properties. She sought to rely upon Article 22 of Council Regulation (EC) No 44/2001 (Brussels I). She argued that Article 22 conferred exclusive jurisdiction on the Member State in proceedings which have as their object rights of rem in immovable property in that state. In the alternative she argued that the TOLATA proceedings were complementary to and not competitive with the French divorce, and should therefore not be stayed.

At first instance the wife was successful. The husband appealed. It was held on appeal that the wife's rights under TOLATA 1996 were not rights in rem but rights in personam. The actions were related actions. The Court therefore had a discretion under Brussels I Article 28 whether to allow the proceedings in England to be stayed. The court should stay the TOLATA proceedings. Since there was a risk of irreconcilable judgments in two member states and the wife's application was superfluous to the French ancillary relief proceedings. Thorpe LJ stated that the disapproval of multiplicity of proceedings when divorce proceedings were on foot in England must extend to divorce proceedings in a Member State.

Prenuptial Agreements and Jurisdictional Disputes
Prenuptial agreements are binding in most Member States, with varying safeguards and preconditions as to their validity. Respect was accorded to a prenuptial agreement recently in a divorce jurisdictional contest between England and Switzerland. In Bentinck v Bentinck [2007] EWCA Civ 175. H had taken up permanent residency in Switzerland and W had remained in the United Kingdom. The premarital agreement had provided that the contract and marital relationship between the parties would be subject to Swiss jurisdiction and law. H initiated conciliation and divorce proceedings in Switzerland. W later petitioned for divorce in England. The Swiss court heard the dispute as to which court was first seised in divorce and ancillary matters and judgment was reserved.

The High Court judge at first instance declined to stay the English proceedings. On appeal to the Court of Appeal it was held that as the Swiss court had yet to decide whether it was first seised, the English court should stay proceedings until that decision was available. Once the Swiss court had decided whether it was seised of the matter, the English court could make the necessary directions consequent upon the Swiss decision. The issue of which jurisdiction was first seised was to be determined in Switzerland according to Swiss law. It was undesirable that there be conflicting expert evidence from Swiss lawyers upon which a London judge had then to determine seisin according to Swiss law when a Swiss judge had already considered the issue. It would be wrong for the parties to continue to incur costs in the English jurisdiction in preparation for a London fixture on the premise that it might precede in time the delivery of the Swiss judgment. H's application for a stay of proceedings was granted.

In Ella v Ella [2007] EWCA Civ 99, a prenuptial agreement provided that the law of Israel should apply on issues between the spouses at any place and any time. The wife had not been independently advised. However, it was common ground that the agreement was enforceable in Israel. The wife issued a petition in England, whereupon the husband applied for a stay of the English petition and issued a petition in Israel. The wife did not apply to stay the proceedings in Israel. The wife then participated in an agreement lodged at the Rabbinical Court. The husband's lawyer stole a march by obtaining an order without notice in the Rabbinical court whereby the Rabbinical court was to have exclusive jurisdiction provided certain conditions were fulfilled.

Macur J granted a stay of the wife's petition on the ground of forum conveniens, finding the prenuptial agreement an important element. The wife appealed. Her appeal was dismissed on the ground that the existence of the enforceable prenuptial agreement was properly regarded as an important element in the exercise of discretion. At the first stage of the de Dampierre exercise, when the court was considering whether Israel was plainly the more appropriate forum, the defects (to English eyes) in the prenuptial agreement were not relevant; the agreement in that context had to be considered by local standards.

Brussels 1 and Schedule 1 to the Children Act 1989
The Judgment of Sumner J has just been released in J v P [2007] EWHC 704 (Fam) where a father was a resident of an EU Member State and the unmarried mother lived in England. The father issued proceedings in his own country seeking inter alia a declaration of parentage and a decision as to maintenance against himself. The mother issued CA 1989 Schedule 1 proceedings for financial relief. Maintenance proceedings are within the scope of the Brussels I Regulation. The real issue in the case was money. The father applied to stay the English proceedings. Under Article 27 of Brussels 1 where proceedings involving the same cause of action and between the same parties are brought in two Member States, the state second seised must stay proceedings until the jurisdiction of the state of first issue is established. If Article 27 does not apply but the two sets of proceedings are related actions under Article 28, the Court second seised has a discretion whether to it should stay its own proceedings. The Judge decided that he must stay English pursuant to Article 27 of Brussels 1 despite expressing regret at this course of action .

Rome III Proposal
The question of whether the law of another EU state should be applied to divorce has for the time being been resolved by the decision of the UK not to opt into the Rome III proposal adopted by the Commission in 2006 for a Council Regulation (COM(2006)399 final), amending Regulation (EC) No 2201/2003 ( Brussels II bis) with regard to jurisdiction and introducing rules concerning applicable law in matrimonial matters. The 2005 Green Paper which preceded Rome III was based on dubious assumptions, such as that choice of law for divorcing couples would be influenced by the divorce law itself, rather than that on property matters, ancillary relief and/or child custody, all of which in the view of experienced family practitioners, are of greater concern to the parties.

Professional bodies urged the UK not to opt-in, put simply, on the grounds that it would cause legal uncertainty and practical problems in all cases having a foreign element heard in England & Wales, and those having an English element heard in another Member State. Ireland has also decided not to opt in (for the time being at least.)

Most of The EU civil law (as opposed to common law) jurisdictions argue that the applicable law should be in accordance with the legitimate expectations of the parties. This would go far beyond the scope of the current jurisdictional basis of Brussels II revised. Should the divorce be governed by the law with which the parties have the closest connection or one of their choice even where they do not litigate in the state concerned? Of particular concern was the underlying assumption that all Member States have a separate matrimonial property regime, and that decisions relating to matrimonial property are separate from divorce proceedings.

Community of Property
In White v White the House of Lords emphasised that the courts must apply the discretionary provisions of the Matrimonial Causes Act 1973 (as amended): an equal division will be the fair outcome of this in many cases where the overall assets exceed the needs of the parties and any children. However, Lord Nicholls said that "a presumption of equal division would be an impermissible judicial gloss on the statutory provision". Thus even in cases of substantial wealth there is not even a presumption, let alone an entitlement to an equal division of family assets. However, the view in certain English academic circles is that for ECJ purposes the effect of White v White is that there is now a community of property regime in England and Wales.

Nicholas Mostyn QC in Rossi v Rossi [2006] 3 FCR 271 stated,

"In all cases now a primary function of the court is to identify the matrimonial and non matrimonial property."

A distinction is to be drawn between what Baroness Hale and Lord Mance have characterised as non-business partnership or non family assets. Their Lordships' definitions do not accord. Even if, in most cases, need remains the decisive factor, the shift towards a European property regime is plainly detectable. The most apt description of our system in the view of some well respected English practitioners is: "a deferred community of property regime" i.e. one which is put into effect when the marriage is ended by divorce or death.

Entitlement to a decree of nullity
Judgment was pronounced on 29.3.07 by Coleridge J in the case of Burns v Burns where the Court considered whether a wife was entitled to a decree of nullity where a marriage had taken place in a balloon in California. The marriage was invalid under local law and the wife would not have been entitled to a decree of nullity in California. The husband argued that under the doctrine of lex loci celebrationis, since she would not have been entitled to a decree of nullity in California she was not entitled to such a decree in England either. However Coleridge J held that the ambit of the doctrine was limited to to considering whether the ceremony was valid or not. The consequences of the invalidity including the availability of any remedies were to be determined under english law

Family Law Practitioners must recognise the importance of this emerging jurisprudence. England is no longer an Island

Clare Renton is a specialist family law barrister in practice at 29 Bedford Row