On 11 December 2020, EAPIL hosted its first (virtual) seminar, under the title “Brexit and Private International Law – What Now?” Some of the speakers decided to share their initial statements. The statements of Alexander Layton and Michiel Poesen can be found here and here, respectively. Pietro Franzina’s is reproduced below.
The Impact of Brexit on Cross-border Divorces – The EU Perspective
The Situation after the End of the Transition Period
With the end of the transition period, Brussels II bis Regulation will no longer be applicable in, and in respect of, the UK. As far as divorce, legal separation and marriage annulment are concerned, the change will have different implications depending on whether jurisdiction, rather than the recognition of judgments or the management of parallel proceedings, is at issue.
As regards jurisdiction, the current scenario is not expected to undergo, in practice, major changes. EU courts will continue to rely on Brussels II bis when dealing with UK-related cases, save that they will no longer be barred from resorting to domestic grounds of jurisdiction, pursuant to Article 7, vis-à-vis defendants who are British nationals or have their habitually residence in the UK. The picture won’t change when Brussels II ter will become applicable in 2022, as the recast has left the rules concerning jurisdiction in matrimonial matters substantially unchanged.
The recognition of UK judgments in EU Member States will instead be visibly affected by the change, given that Brussels II bis is only concerned, as such, with the circulation of judgments from one Member State to another. Other rules, namely the 1970 Hague Divorce Convention, where applicable, or the domestic rules of the Member State concerned, will decide whether judgments originating in the UK qualify for recognition in the EU. This does not necessarily mean that UK judgments will have significantly smaller chances to be recognised in the Member States compared with today. Recognition will likely prove more complicated, procedurally, but a large share of the judgments that currently qualify for recognition under EU rules should do so also under the Hague Convention and most domestic PIL legislations. The de facto similarity of the jurisdictional rules that are set to apply to divorce proceedings in the Member States and in the UK, respectively, should greatly facilitate this result (it is understood that, once the transition period is over, UK courts will assess their jurisdiction based on newly introduced domestic grounds which reproduce, to a large extent, those found in the Brussels II bis Regulation (reference is made to the amendments made to the Domicile and Matrimonial Proceedings Act 1973 under the Jurisdiction and Judgments (Family) (Amendments etc.) (EU Exit) Regulations 2019).
Rather, some practically significant changes are set to occur as regards the coordination of parallel matrimonial proceedings. Article 19 of Brussels II bis, on lis pendens, only applies as such where proceedings between the same parties are brought before courts of different Member States. With the end of the transition period, parallel proceedings involving a Member State court and a court in the UK will no longer be dealt with under Article 19, or indeed under any other EU rule: unlike the Brussels I bis, the Brussels II bis Regulation fails to make provision for extra-EU lis pendens, and so will Brussels II ter, once it will replace the existing rules.
In practice, Member State courts will resort to their own domestic rules for the purposes of determining whether, and subject to which conditions, they could or should stay the proceedings before them, or decline jurisdiction, on the ground that the same matrimonial matter is pending in the UK. These rules vary considerably from one State to another.
The UK, for its part, is not going to retain anything similar to the very continental notion of lis pendens. It is understood that, as soon as Brussels II bis will cease to apply in the UK, UK courts will address parallel litigation based on considerations of convenience rather than priority in time, and would not refrain from issuing anti-suit injunctions, if they deem appropriate to do so.
Given the number and variety of concurrent heads of jurisdiction available in the field of divorce, the lack of a harmonised approach to parallel proceedings in the EU and the UK will likely encourage strategic litigation (notably where the court with jurisdiction over the divorce also has, for that reason, jurisdiction to rule on the couple’s financial issues), make cross-border proceedings more complex and more expensive, and possibly increase the likelihood of conflicting judgments.
The Possible Next Steps
One of the purposes of this virtual seminar is to assess whether, and by which means (including the conclusion of a bespoke agreement between the EU and the UK), the current state of affairs could be improved.
What Role for the Hague Divorce Convention?
Some have suggested that the picture would improve if the EU exercised its external competence and asked the Member States that have not done so to ratify, or accede to, the Hague Divorce Convention. There are no apparent signs that steps may be taken in that direction by the EU institutions in the near future. Generally speaking, a similar development appears to be highly unlikely. Be that as it may, a broad ratification of the Hague Convention would hardly be a thoroughly satisfactory solution in itself. There are three reasons for that. First, the Convention is concerned with the recognition of judgments; it does not deal with (direct) jurisdiction and fails to regulate parallel proceedings (the Convention contents itself with stating, in Article 12, that proceedings in a Contracting State “may be suspended” when proceedings relating to the matrimonial status of either party to the marriage are pending in another Contracting State). Second, the Convention is only concerned with divorce and legal separation, and – unlike Brussels II – does not apply to marriage annulment. Third, the Convention is designed to apply to judicial proceedings and fails to provide guidance as regards such divorces or legal separations as may result, under the applicable domestic law, from the spouses’ agreement, or rest on a public instrument issued by a notary public or another non-judicial authority. Recent private international law legislation, including the Brussels II ter Regulation, acknowledge the practical importance of non-judicial divorces. If efforts are to be deployed towards harmonising the law between the EU and the UK as regards family litigation, then it would make sense to consider out-of-court divorces, as well.
A Hypothetical Bespoke EU / UK Agreement
Of course, a bespoke agreement would, in principle, allow the EU and the UK to address, and fix, all of the shortcomings mentioned above. Although nothing suggests that a similar agreement could soon find its way in the parties’ political agenda, one may already wonder what a hypothetical instrument on cross-border matrimonial matters should look like, in order to meet the practical needs of those concerned.
Arguably, the material scope of the instrument should be broad. Like the Brussels II bis Regulation, the agreement should apply to divorce, legal separation and marriage annulment. One would be tempted to say that a hypothetical agreement should extend to matters outside the scope of Brussels II, such as the invalidity and dissolution of registered partnerships. The extension would likely bring added value, given the increase in the number of such partnerships both in the UK and in the EU (see here, for instance, the data concerning France), but would probably be faced with political difficulties on the EU side, given the attitude of some Member States towards such partnerships (not all Member States make provision for unions other than marriage).
As regards the content of a hypothetical agreement, one should distinguish, again, between jurisdiction, the recognition of judgments and the management of parallel proceedings.
Finding consensus on the use of some harmonised grounds of jurisdiction (a white list) should not be overly difficult, given the existing similarities between the rules that are currently in force in the EU and in the UK, respectively. Other, non-harmonised, grounds could remain available to EU and UK courts (grey list), whereas some others would be prohibited (black list), at least vis-à-vis spouses connected, by nationality and/or habitual residence, to the EU or the UK.
The harmonisation of the rules on recognition should also prove relatively easy to achieve. There is no reason to believe that the EU and the UK owe each other a significantly lower degree of mutual trust just because of Brexit, especially insofar as jurisdiction is to be asserted, in the EU and the UK, in accordance with the same standards. Mutual trust should likely facilitate the elaboration of common rules on the effects of “private” and, generally, non-judicial divorces.
Shaping common rules to deal with parallel matrimonial proceedings could, instead, prove very difficult. The divisive issue is whether priority in time should be the key rule here. In fact, a strict priority rule, as in Article 19 of Brussels II bis, would hardly be accepted by the UK. The EU, it is contended, would have excellent reasons to reconsider its faith in the rule whereby the first-seised court should, for this sole reason, be preferred. Applied to divorce and legal separation, the latter rule – as many have observed – may cause the spouses to start judicial proceedings as early as possible, and make alternative avenues, notably mediation, less appealing. A more flexible approach, one allowing for the combined consideration of various factors, including (but no longer limited to) time, would arguably be beneficial for the EU, internally, and would likely represent a sensible basis for a compromise solution with the UK. Needless to say, flexibility may frustrate predictability, to some extent. Yet, this risk, it is submitted, should not be overestimated. Much depends, in fact, on whether the courts concerned agree on the policies that should underlie the regulation of cross-border proceedings in this area. A bespoke agreement would provide an opportunity to state such common policies. In addition, a hypothetical agreement could seek to re-establish some forms of permanent dialogue between the courts in the EU, on the one hand, and those in the UK, on the other, either through central authorities or by means of direct judicial communications: this would it make it easier for the courts concerned to assess (jointly, where possible) what steps should be taken in individual cases in order to advance the relevant common policies.