Commission of the European Communities Green Paper on applicable law and jurisdiction in divorce matters. September 2005
European Women Lawyers Association
The European Women Lawyers Association (“EWLA”) is a non-profit making international non-governmental organization founded in 2000.
Facts and Figures Members are national women lawyers associations as well as individual women lawyers from all EU, EFTA and EEA Members States and from some Candidate Countries. EWLA represents therefore a large number of European women lawyers of all legal professions.
The daily work of each lawyer shows that European law is an area of growing interest. EWLA offers an excellent opportunity to meet with colleagues working in very different fields and allows for an exchange of experience with colleagues from all over Europe. It serves as a pool of expertise for the Commission, the Parliament and the other European institutions, as well as for citizens of the European Union in all areas inside the Union and the candidate countries.
The Board is composed of 24 members (seats available from each Member State of the European Union EFTA and EEA but with vacancies currently from Denmark, Estonia, Ireland and Lithuania,). EWLA can therefore quickly distribute and collect all relevant information in each of these States.
Objectives and Functions EWLA has the following aims:
- to improve the understanding of European legislation in relation to equal opportunities, with particular reference to women, and its effects;
- to bring together women lawyers across the European Union, e.g. by the closest possible contacts with bars, law societies, associations of women lawyers, faculties and schools of legal education and research, both on a national and international level and with European or other public authorities;
- to undertake studies, research and conferences of European women lawyers also with organizations and institutions inside and outside of Europe with view to achieving equality of rights and opportunities;
- to strengthen links between EU women lawyers and to encourage meetings, cooperation and understanding between women lawyers.
EWLA pursues its aims in particular by holding conferences and other events; distributing information material; giving advice or opinions on actual legal topics concerning EU-policies or on cases of the courts of the EU or of the European Court for Human Rights; and proposing or commenting on drafts of EU-legislation.
Executive Summary EWLA is concerned about the impact of current and proposed EU legislation on women in particular.
Many Member States have different laws on divorce. For example, Malta does not allow divorce, but in Sweden divorce proceedings can be swift and simple. Therefore, there could be a significant impact on women’s ability and ease of access to divorce, depending on which divorce law is applicable.
In addition, the decision of which divorce law is applicable usually determines which law is applicable in relation to financial matters on divorce. Again, many Member States have different laws regarding financial matters. For example, in much of the EU pre-marital and inherited assets are not part of the divorce settlement, but they are in others such as the Netherlands, Finland, England and Wales. Maintenance for wives can also vary from nothing to a substantial share and can be for a limited period or for life.
As a result, the outcome of any future legislation may well have a significant impact on women’s ability and ease of access to divorce, as well as their financial well-being on divorce. Women could lose or gain the right to divorce. They could also lose or gain financial rights on divorce, for example to maintenance, inheritance or property.
Of course these changes will also affect men, but the impact on women is likely to be different, and arguably greater. This is because generally women are still more vulnerable than men both economically and socially. They are at a disadvantage in the work place and financially still tend to have the primary responsibility for childcare .
In cases where conflict of laws is an issue, the legal arguments can be complicated and it is usually necessary to obtain advice from lawyers from at least two Member States. The New Brussels II Regulation also means that it may be necessary for a woman to take action quickly, and crucially, before her husband, in order to secure the best jurisdiction and applicable law for her (and any children). Therefore it is essential that the process is as simple and cheap as possible so that women are not disadvantaged due to their often weaker financial position.
EWLA therefore urges the Commission of the European Communities to consider fully the impact of any new legislation on the women of the EU.
EWLA Responses to Questions 1 to 20 Question 1: Are you aware of other problems than those identified above that may arise in the context of “international” divorces?
EWLA has the following concerns:
• The outcome of the current conflict of laws can affect men and women’s ability and ease of access to divorce, as well as their financial well-being on divorce. For example women could lose or gain financial rights on divorce, for example to maintenance, inheritance or property, or even lose the right to divorce at all.
• Lack of acceptance of “international” judgments on family law, which could lead to increasing costs for appeal authorities.
• Problems with enforcement of the judgments. For example, when executing visiting rights.
• Where there is a choice of laws, rather than lex fori, there may be difficulties in correctly interpreting the applicable law. In particular where there are significant differences between the applicable law and that of the host country. For example, not all Member States have community of property. Also legal systems based on the Civil Code are fundamentally different to the precedent based Common Law system, and even within the Civil Code systems there can be significant differences in approach.
Question 2: Are you in favour of harmonising conflict-of-law rules? What are the arguments for and against such solution?
As a matter of principle, EWLA is in favour of harmonising conflict-of-law rules, but recognises that there may be many difficulties, legal, political and cultural, with implementing this strategy in the short term.
The arguments in favour of harmonisation are:
- simplification when determining the applicable law;
- legal certainty for the international couples;
- transparency.
- removing the necessity of a rush to court to secure the appropriate law
The arguments against harmonisation are:
- interference with the sovereignty of the Member States;
- differences in the application of the law (leading to the impossibility of an “unité de doctrine”).
- potential difficulties in finding a common approach given the current different approaches of Member States
Question 3: What would be the most appropriate connecting factors?
EWLA considers that various factors may be appropriate.
The advantages of Lex fori are:
• certainty and clarity without complexity
• it will not be necessary to agree additional connecting factors
• it will provide continuity, as the Member States can continue to rely on the connecting factors already agreed in the Brussels II Regulation and reaffirmed in article 3 of the New Brussels II Regulation which came into force on 1st March 2005
• courts will not have to interpret and apply the law of another Member State which may be quite different.
EWLA believes that the following connecting factors could be used:
• nationality or domicile, and
• habitual residence of the parties and their children.
The advantage of these connecting factors is that they have already been agreed as significant factors in both the Brussels II and the New Brussels II Regulation and are therefore already in use throughout the EU.
Question 4: Should the harmonised rules be confined to divorce or apply also to legal separation and marriage annulment?
EWLA believes that in principal the harmonised rules should apply to all procedures concerning matrimonial law (including divorce, legal separation, invalidity, nullity, amendments to judgments, dissolution e.g. in cases of missing persons and presumption of death), but further research may be necessary to investigate the implications of this in the different Member States.
Question 5: Should the harmonised rules include a public policy clause enabling courts to refuse to apply a foreign law in certain circumstances?
EWLA believes that a public policy clause enabling courts to refuse to apply a foreign law in certain circumstances should be included.
Question 6: Should the parties be allowed to choose applicable law? What are the arguments for and against such a solution?
EWLA believes that the parties should be allowed to choose applicable law if they can do so by agreement. This will allow the parties to choose a law with which they feel the closest links, and this means that they are more likely to accept and abide by the outcome.
Question 7: Should the choice be limited to certain laws? If yes, what would be the appropriate connecting factors? Should it be limited to the laws of the Member States? Should it be limited to “lex fori”?
EWLA’s view is that the choice of law should be limited to the law of the Member State where the parties are habitually resident or nationals/domiciled.
Lex fori is considered to be advantageous for women as it is the simplest legal solution and therefore may result in less legal and financial barriers to women obtaining the necessary legal advice and securing the most beneficial outcome. But EWLA is concerned that the “rush to court” should also be abolished as this is likely to put those women who are at a financial disadvantage at a further disadvantage legally as they are unlikely to have the resources to act quickly enough to secure the best jurisdiction or applicable law.
Question 8: Should the possibility to choose applicable law be confined to divorce or should it apply also to legal separation and marriage annulment?
In principal, EWLA believes that the harmonised rules should apply to all procedures concerning matrimonial law (including divorce, legal separation, invalidity, nullity, amendments to judgments, dissolution e.g. in cases of missing persons and presumption of death), but further research may be necessary to investigate the implications of this in the different Member States.
Question 9: What should be the appropriate formal requirements for the parties’ agreement on the choice of law?
EWLA believes that a formal written statement should be required. EWLA is concerned that this should include confirmation that both parties have had independent legal advice on the consequences, or have chosen not to do so of their own free will. EWLA is concerned that without this safeguard many women may be pressurised into signing a statement without the necessary legal advice or knowledge. In some Member States this might be fairly easily incorporated into the existing procedure.
Question 10: In your experience, does the existence of several grounds of jurisdiction result in “rush to court”?
EWLA believes that the “rush to court” exists and is a problem for families. EWLA is concerned that the increased pressure that the “rush to court” places on families at a time when they are already in difficulties does little to help them, particularly if there are children.
But EWLA does not believe that it is the existence of several grounds of jurisdiction that has resulted in the “rush to court”. It came into being following the implementation of the Brussels II Regulation, and its continuation in articles 16 to 20 of the New Brussels II Regulation. Prior to this there were still several grounds of jurisdiction in place, but there was no “rush to court”.
Question 11: Do you believe that the grounds of jurisdiction should be revised? If so, what would be the best solution?
EWLA believes that it would be desirable to have the possibility of choice of jurisdiction for procedures in which the parties are in agreement.
Moreover, the introduction of an emergency jurisdiction at EU level could be considered, following the example of art. 3 of the Swiss Federal Law on international private law, e.g. with the following wording:
Where this regulation does not provide any jurisdiction in the Member States of the European Union, and a procedure in a third State is not possible or unacceptable, the tribunals or the authorities in a Member State are competent, when this Member State has a sufficient connection with the facts of the case.
With regard to third States, the residual jurisdiction provided by art. 7 of the New Regulation Brussels II could be kept.
The advantage of such a jurisdiction rule is that it would not be necessary to refer to the national law of the single Member States, and this would lead to more transparency and legal certainty.
Question 12: Do you consider that the harmonisation of the jurisdiction rules should be reinforced and that Article 7 of Regulation No. 2201/2003 should be deleted, or at least limited to cases where no EU citizens are involved? If so, what should these rules look like?
EWLA believes that Article 7 should remain, but that a general emergency jurisdiction should be introduced at EU-level (see answer to question 11).
Question 13: What are the arguments for and against introducing a possibility of prorogation in divorce cases?
EWLA believes that a possibility of choice of the place of jurisdiction is desirable in cases where the parties can reach an agreement. In those cases it should also be possible to transfer the proceedings to the agreed jurisdiction if lex fori is in operation. The advantages of this are that it allows self-determination and flexibility for couples that are able to agree.
Question 14: Should prorogation be limited to certain jurisdictions?
EWLA believes that choice of jurisdiction should be limited to jurisdictions of the Member States in which the couple are habitually resident or are nationals or domiciled.
Question 15: What should be the appropriate formal requirements for the parties’ agreement on the competent court?
EWLA believes that a formal written statement should be required. EWLA is concerned that this should include confirmation that both parties have had independent legal advice on the consequences, or have chosen not to do so of their own free will. EWLA is concerned that without this safeguard many women may be pressurised into signing a statement without the necessary legal advice or knowledge. In some Member States this might be fairly easily incorporated into the existing procedure.
Question 16: Should it be possible to request a transfer of a divorce case to a court of another Member State? What are the arguments for and against such solution?
EWLA believes that in general a transfer clause should not be introduced, because of the likely delays and procedural difficulties. However, if the parties have agreed on an applicable law in another Member State they should have the option to transfer their case to that Member State if they wish to do so.
Question 17: What should be the connecting factors to establish whether a case can be transferred to another Member State?
EWLA believes that this should be limited to:
• if the parties have agreed on an applicable law in another Member State
• as part of the emergency jurisdiction clause (as outlined in the answer to question 11)
Question 18: What safeguards would be necessary to ensure legal certainty and avoid undue delays?
EWLA believes that greater co-ordination between jurisdictions may be assisted by specific targeted working groups such as the ENJ and more generally by organisations such as EWLA.
Question 19: Which combination of solutions do you believe would provide the most appropriate remedy to the problems described?
EWLA’s main concerns are as follows:
• The outcome of any future legislation may well have a significant impact on women’s ability and ease of access to divorce, as well as their financial well-being on divorce. Women could lose or gain the right to divorce. They could also lose or gain financial rights on divorce, for example to maintenance, inheritance or property.
• The impact of any changes is likely to be different, and arguably greater, for women than men. This is because generally women are still more vulnerable than men both economically and socially. They are at a disadvantage in the work place and financially still tend to have the primary responsibility for childcare .
• One of the main areas in which EU Member States laws differ is maintenance. This can range from none, to some for a limited period, to a significant share for a lifetime. This is likely to have a greater impact on women as they still tend to be the primary carer for children.
• In cases where conflict of laws is an issue, the legal arguments can be complicated and it usually necessary to obtain advice from lawyers from at least two Member States. Currently, the New Brussels II Regulation also means that it may be necessary for a woman to take action quickly, and crucially before her husband, in order to secure the best jurisdiction and applicable law for her (and any children).
• It is essential that the process is as simple and cheap as possible so that women are not disadvantaged due to their often weaker financial position. EWLA believes that the following combination of solutions would provide the most appropriate remedy for these problems:
o The choice of law should be limited to the law of the Member State where the parties are habitually resident or nationals/domiciled.
o Lex fori is considered to be advantageous for women as it is the simplest legal solution and therefore may result in less legal and financial barriers to women obtaining the necessary legal advice and securing the most beneficial outcome.
o EWLA is concerned that the “rush to court” should also be abolished as this is likely to put those women who are at a financial disadvantage at a further disadvantage legally as they are unlikely to have the resources to act quickly enough to secure the best jurisdiction or applicable law.
o It would be desirable to have the possibility of choice of jurisdiction for procedures in which the parties are in agreement
o The grounds of jurisdiction should be revised by the introduction of an emergency jurisdiction at EU level
o A public policy clause enabling courts to refuse to apply a foreign law in certain circumstances should be included.
Question 20: Would you suggest any other solution to solve the problems described in chapter 2?
EWLA believes that greater recognition and enforceability of pre-marital agreements across the EU may be beneficial.
Authors: Dr. jur. Alice Reichmuth, Vicepresident of Kantonsgericht Schwyz
lic. jur. Zsuzsana Vasvary,attorney-at-law, Basel
lic. jur. Ingrid Indermaur,attorney-at-law, Zurich
Ms Emma Ries,solicitor, collaborative lawyer, Resolution member and Accredited Specialist in Cohabitation and Advanced Financial Provision, member of Association of Women Solicitors Law Reform Group, part of the Law Society of England and Wales, London
Bibliography
• Commission of the european communities, Green Paper on applicable law and jurisdiction in divorce matters; Brussels, 14 March 2005 [COM(2005) 82 final], SEC (2005) 331;
• Commission of the european communities, Commission staff working paper - Annex to the Green Paper on applicable law and jurisdiction in divorce matters; Brussels, 4 March 2005;
• Council Regulation (EC) No 2201/2003 of 27 November 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 (hereinafter: New Regulation Brussels II);
• Council Regulation (EC) No 1347/2000 of 29 May 2000 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility for the children of both spouses (hereinafter: Regulation Brussels II);
• Message of the Swiss Federal Council with regard to the Swiss Federal Law on international private law of 10 November 1982, Federal Paper 1982 I, pages 263 and following;
• Commentary on the Swiss Federal Law on international private law of 1 January 1989, edited by Anton Heini, Zurich 1983.
• The Case of the Common Law in European Legal Education Professor Avrom Sherr, Institute of Advanced Legal Studies, University of London, England
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