International family law after Brexit - will first in time survive?

Posted: 12/12/2016

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Like it or loathe it, following the June referendum, the UK will be leaving the EU at an undetermined future date. One of the issues that requires pressing attention is which EU laws the Government wishes to adopt for domestic use, and which it wishes to abandon, in a post-Brexit legal world.

Specific consideration will need to be given to Council Regulation (EC) 2201/2003 (Brussels II revised, referred to here as “BIIA”) which determines which EU jurisdiction has priority when the parties lodge separate divorce proceedings in different member states. This regulation has provided legal certainty for many divorcing couples as the first divorce application lodged with an EU member state court always prevails over one lodged in another EU member state afterwards.

Serving the divorce papers – is delay fatal?

A timely example of the application of BIIA can be found in the recent case of Thum v Thum (2016) EWHC 2634 (Fam). The facts of the case are simple in that the wife, living in the UK, issued a divorce petition in the UK in October 2015. The husband was living in Berlin. The issue was that the wife then took no steps to serve the divorce papers upon the husband. She took no steps to serve him until mid-January 2016 and, when she did try to serve the husband, via the Foreign Process Service, there was an added complication in that she provided an incomplete address. This meant that the divorce papers were returned to her unserved. In the meantime, the husband had issued his own petition, in Germany, and had served this on the wife. Eventually, the wife served the husband with her divorce petition in late February 2016. The husband argued that the wife’s petition should not take priority under BIIA because she failed to serve it in a way that accorded with her legal obligations to do so.

The judge queried the status of an issued but unserved divorce petition:

“Why does this matter? Before the advent of the original Brussels II Regulation the chronological sequence of competing petitions was of no great relevance. However, with the advent of Brussels II, incorporating the first past the post rule for determining jurisdiction, the question of the status of an unserved petition might be of critical importance.” 

So what are the service obligations under BIIA? After hearing argument from both parties and details of previous cases on the same point, the court held that BIIA contains no specific time requirements for service of an issued petition: in this particular case the wife had acted with reasonable promptitude in arranging service and could not be said to have fallen foul of the requirements of the regulation. It was very much a case that was decided on its particular facts.

What would the court have done without BIIA?

If we assume that BIIA (or an equivalent) is not adopted by the UK Government post-Brexit, we will have to look to the domestic law currently in place when separate divorce applications are made here and in an EU country. In a post-BIIA landscape the courts will revert to a discretionary evaluation of the most appropriate jurisdiction for the divorce to take place using a doctrine called ‘forum conveniens’. How the most convenient jurisdiction will be determined is rather uncertain, but it is likely that the courts will be guided by issues such as where the parties’ assets are, or where the parties live at the time of the application.

Family lawyers have differing views on whether the certainty provided by BIIA is a benefit which outweighs other, potentially negative, consequences of the regulation. For example, the race to be first past the lodging post often means international cases start acrimoniously rather than beginning with a focus on keeping emotions controlled and the welfare of the family at front and centre. This can mean that opportunities to negotiate agreements through mediation or collaborative methods are lost to the family at the outset. However, the issue without BIIA is that courts lack certainty and consistency. This has the potential to lead to lengthy and expensive disputes if the parties involved have different ideas about where proceedings should be issued.

Looking to the future: the 1996 Hague Convention

In another recent case (JA v TH (2016 EWHC 2535)), the court applied a different set of international jurisdictional rules: the 1996 Hague Convention.

This case involved a child arrangements dispute between a Norwegian mother and an English father, regarding their two children (aged eight and 10). During the initial proceedings, it was ultimately agreed:

• that the mother would take the younger child to Norway to live with her;
• that the eldest child would stay in the UK and live with the father; and
• a schedule contact would ensure that both parties retained a relationship with both their children, and indeed, that the children maintained a sibling relationship between themselves. 

Unfortunately, the contact schedule was not adhered to, which triggered an application by the father to the English courts and then by the mother in Norway.

The father asked the English court to submit a request to the Norwegian courts under Articles 8 and 9 of the 1996 Hague Convention, to combine the dispute under one jurisdictional umbrella in England and Wales.

The English court agreed with the father that the use of Article 9 was appropriate as the youngest child retained a ‘substantial connection’ to England and was also a UK national. To transfer the Norwegian proceedings to England would be to promote consistency in any orders made in respect of the children. The court declared that a request would be made to Norway, via the International Family Justice Office to facilitate the request to the Norwegian court for the English court to exercise its jurisdiction over both contact applications.

In its judgment the court remarked:

“At first sight, it might seem surprising that these provisions have not been considered in any court proceedings before now. One explanation for this may be that most of the countries closest to the United Kingdom that have signed the 1996 Hague Convention are also members of the European Union and therefore parties to Council Regulation (EC) 2201/2003 ("Brussels IIA"), which contains its own provisions for the transfer of proceedings under Article 15. Of course, following the referendum on leaving the European Union, it is possible (although, at the time of this judgment, by no means certain) that Brussels IIA will in due course cease to apply to this country. If so, the provisions of the 1996 Hague Convention will undoubtedly acquire a greater prominence.”

This judgment may well indicate the future approach of the court to issues of jurisdiction. During this transitional phase before Brexit is a reality, a close eye must be kept upon the judiciary for guidance as to how matters of jurisdiction will be handled in the future.

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