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Anglo-Swiss Divorce Proceedings Post-Brexit: Part I

Roxane Reiser, Barrister of 1 Hare Court, analyses the impact of Brexit on the recognition and enforcement of UK divorces and financial orders in Switzerland.

 

 

 

 

 

 

 

 

 

 

Roxane Reiser, Barrister, 1 Hare Court

This is the first article of a two-part series analysing the impact of Brexit on the recognition and enforcement of UK divorces and financial orders in Switzerland. Overall, the practical impact of Brexit on recognition of UK divorces in Switzerland is likely to be limited. Part I of this article sets out the requirements for recognition of UK divorces in Switzerland, and highlights the potential dangers of relying on "weak" jurisdictional ties such as nationality or common law domicile in UK divorce proceedings.

Part II of this article will explore the changes brought about by the end of the UK membership of the Lugano Convention. This is likely to result in important efficiency losses, to the detriment of the individuals involved in such proceedings. However, rules of Swiss International Law are already filling this gap. Maintenance creditors seeking to enforce a UK maintenance order in Switzerland have nothing to fear. Those seeking to enforce orders relating to matrimonial property and Swiss pensions may face greater difficulties.

Recognition of UK divorce decrees in Switzerland

Brexit has no impact on the recognition of UK divorce decrees in Switzerland. Both the UK and Switzerland have been contracting parties to the 1970 Hague Convention on Recognition of Divorces and Legal Separations ('1970 Convention') since the mid-seventies. Reciprocal recognition of divorce decrees between Switzerland and the UK is therefore guaranteed provided that the conditions for recognition contained in the 1970 Convention are met.

Practitioners who are not already familiar with the 1970 Convention will need to pay close attention to the jurisdictional restrictions contained in Art. 2 of the 1970 Convention in particular. It provides that divorces and legal separations obtained in one Contracting State shall be recognised in all other Contracting States, subject to the remaining terms of the Convention, if, at the date of the institution of the proceedings in the State of Origin – 

(1)   the respondent had his habitual residence there; or

(2)   the petitioner had his habitual residence there and one of the following further conditions was fulfilled –

a) such habitual residence had continued for not less than one year immediately prior to the institution of proceedings;
b) the spouses last habitually resided there together; or

(3)   both spouses were nationals of that State; or

(4)   the petitioner was a national of that State and one of the following further conditions was fulfilled –

a) the petitioner had his habitual residence there; or

b) he had habitually resided there for a continuous period of one year falling, at least in part, within the two years preceding the institution of the proceedings; or

(5)   the petitioner for divorce was a national of that State and both the following further conditions were fulfilled -

a) the petitioner was present in that State at the date of institution of the proceedings and

b) the spouses last habitually resided together in a State whose law, at the date of institution of the proceedings, did not provide for divorce.

As the explanatory report to the 1970 Convention makes clear (Bellet/Golman), those restrictions aim to link the recognition of divorces to the existence of a sufficient claim to jurisdiction on the part of the state of origin (§24). In other words, these restrictions offer a degree of protection against the potentially exorbitant jurisdiction of some States.

Practitioners may be anxious to know whether those jurisdictional restrictions would prevent the recognition of a divorce obtained in England based on the sole domicile of one of the parties. This worry may arise from the post-Brexit amendment of section 5(2) of the Domicile and Matrimonial Proceedings Act 1973 ('DMPA 1973'), which now elevates "sole domicile" to a primary, rather than residual, basis of jurisdiction actionable only where no EU Member States has jurisdiction under Brussels IIA. This is not, in truth, a new or real issue. Switzerland was never a party to Brussels IIA and, thus, the residual jurisdiction of sole domicile has been commonly relied upon by British forum-shoppers living in Switzerland and wishing to take advantage of the wide discretionary powers of British judges. 

The short answer is: It depends. The first difficulty is that domicile in the English legal sense is a fact-specific concept with no equivalent in Swiss law, generally characterised by far weaker links to a particular State than Switzerland would typically require for its courts to assume jurisdiction. The second difficulty is that there is often a dispute of fact as to whether a party was domiciled in England, rather than Switzerland, at the time of the proceedings. The Swiss court may have to determine the issue, and in doing so may come to a conclusion that is different from that of a British judge sitting in England.

There are two important provisions in this respect: First, Art. 3 of the 1970 Convention provides that where the State of origin uses the concept of domicile as a test of jurisdiction, the expression "habitual residence" in Art. 2 shall be deemed to include domicile as the term is used in that State. The explanatory report makes it clear that this provision was expressly designed to ensure recognition of divorces and legal separations obtained in the UK on the basis of domicile. See (§32), which states:

"This provision is of real significance only where the concept of domicile in the State is distinct from that of habitual residence. Such is the case, in particular, in the United Kingdom, where, on account of the importance attached to the element of intent in domicile, domicile can be retained despite a fairly prolonged stay abroad. A decree of divorce pronounced by a court in the United Kingdom which regards itself as having jurisdiction by virtue of the defendant's domicile must be recognised by the other contracting states, even if it appears that there is in fact a divergence between that domicile and the "habitual residence". Similarly, if a country bases its jurisdiction on the petitioner's domicile, a divorce acquired in that country must be recognised if one of the further conditions laid down in article 2(2) is fulfilled."

This means that Art. 2(1) and (2), when considered in the context of an English divorce, can be read as follows:

(1)   the respondent had his habitual residence or domicile there; or

(2)   the petitioner had his habitual residence or domicile there and one of the following further conditions was fulfilled –

a) such habitual residence had continued for not less than one year immediately prior to the institution of proceedings;

b) the spouses last habitually resided there together.

In short, the sole domicile of the defendant in England may be sufficient, but not the sole domicile of the petitioner without more.

If there is a dispute of fact as to domicile, this may not be too problematic where the defendant took part in the divorce proceedings. Art. 6 of the 1970 Hague Convention specifically provides that in such cases the authorities of the State in which recognition of a divorce or legal separation is sought shall be bound by the findings of fact on which jurisdiction was assumed. A defendant who did not challenge jurisdiction based on sole domicile in England, or whose challenge was unsuccessful, will not be able to oppose recognition in Switzerland.

However, if the defendant does not take part in the proceedings, any findings of fact made on domicile in his absence will not be binding on the Swiss court under Art. 6. A Swiss court faced with a dispute of fact as regards domicile in the English sense is likely to approach the issue in a pragmatic manner, focusing on the centre of gravity of the life of the person said to be domiciled in England. The existence of children and a main family home in Switzerland, combined with a prolonged presence in the country, is often enough for a Swiss court to consider that an individual has acquired a domicile of choice in Switzerland.

Second, Art. 17 of the 1970 Convention provides that the Contracting States can provide for rules of law, which are more favourable to the recognition of foreign divorces and legal separations than those contained in the Convention.

Rules of Swiss international private law provide additional bases of indirect jurisdiction upon which recognition depends, notably sole nationality. Art. 65 of the Swiss Private International law ('SPILA') provides that foreign divorces shall be recognised in Switzerland if obtained in the State of domicile (in the Swiss legal sense) or habitual residence or of nationality of one of the spouses, or if they are recognised in one of those States. However, where the divorce is obtained in a State of which none of the spouses or only the petitioner is a national, it shall only be recognised if in addition:

a) At least one of the spouses was domiciled or habitually resident in the state of origin, and the defendant was not domiciled in Switzerland;

b) The defendant spouse has submitted to the jurisdiction of the State of Origin or

c) The defendant spouse expressly consents to the recognition of the divorce in Switzerland.

(Note that "domicile" in this context must be understood in the Swiss legal sense. It is akin to habitual residence, but also requires an intention to settle permanently or indefinitely in a given country.)

The combined effect of Art. 2(4) of the 1970 Convention and of this provision is that a divorce obtained in England by a British petitioner whose spouse is not also British can only be recognised if:


- Either the petitioner or the defendant was habitually resident in England; or

- The petitioner had habitually resided there for a continuous period of one year falling at least in part within the 2 years preceding the institution of the proceedings;

- The defendant submitted to the jurisdiction of the State of Origin or

- The defendant expressly consents to the recognition of the divorce in Switzerland.

There are three important points to note, however. First, Art. 65 SPILA contains safeguards for a defendant domiciled (in the Swiss sense) in Switzerland, whose British spouse petitions for divorce in England where neither of them is habitually resident there. While this safeguard is absent from Art. 2(4) of the 1970 Convention, judicial attitudes in Switzerland are likely to tend towards the protection of a defendant domiciled in Switzerland whose spouse issued proceedings in England based on relatively remote links to the jurisdiction.

Second, it is nationality, rather than domicile (in the English sense), which represents the greater threat to a non-British, Swiss domiciled defendant.

Third, as will be evident from the analysis above, the interaction between Art. 65 SPILA and Art. 2 of the 1970 Convention is complex and therefore fertile ground for litigation.

Conclusion

The moral of the story, as one might expect, is that where recognition of an English divorce in Switzerland is contemplated, the ground of sole domicile contained in section 5(2) of the DMPA 1973 should be relied upon with caution.

It must also be said that recognition of the divorce itself is not, generally the heart of a divorce battle. It is the recognition and enforcement of the financial provisions flowing from the divorce, which must be kept at the forefront of the litigator's mind. There is very little value in obtaining what a party may perceive as a more generous order in England, if the provisions of that order cannot be effectively enforced in the "destination country". This may sound like a truism, but it is often overlooked.

In Part II of this series, rules for recognition and enforcement of UK financial orders concerning maintenance and other financial provisions in the post- Brexit era will be explored. It is hoped that Part II will provide some clarity to practitioners involved in Anglo-Swiss proceedings, and perhaps dissuade a few British forum shoppers seeking to escape the jurisdiction of the Swiss courts.

 

The author is grateful to Alexandre Tondina and Florent Chevallier of the Etude de Me Anne Reiser, Geneva, for their comments and assistance.

31.03.21