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The Mad Hatters’ Tea Party

07 May 2019 / brexit Print

Mad Hatters’ Tea Party

Brexit – the somewhat moveable deadline – has been extended until Halloween, unless agreement on withdrawal is reached before that scary day. And not unlike the Mad Hatter’s riddle –‘why is a raven like a writing desk?’ – we have our own riddle to solve: ‘What will international family law look like, post-Brexit?’

The European Union (Withdrawal) Act 2018 provides for repealing the European Communities Act 1972 and for parliamentary approval of the withdrawal agreement being negotiated between the British Government and the EU. This legislation enables cutting off the source of EU law in Britain.

It removes the competence of EU institutions to legislate for Britain. In order to provide legal continuity, it will enable the transposition of directly applicable, already existing EU law into British law, which will be known as ‘retained EU law’.

Ratification

This act makes the future ratification of the withdrawal agreement as a treaty between Britain and the EU depend upon the prior enactment of another act of parliament for approving the final terms of withdrawal.

It is submitted that a body of retained law does not recreate the concepts of mutuality and reciprocity, as currently exists between member states.

For instance, Irish-domiciled individuals who are currently litigating divorce proceedings in Britain run the risk that the ultimate divorce decree, granted by a British court, would not be recognised in Ireland, post-Brexit.

EU law and family law

First, one must consider the current impact of EU law on both British and Irish family law. EU regulations principally decide the jurisdiction in which a family law case is to be heard. The regulations ostensibly have no bearing on the result, albeit that every good family lawyer knows that venue matters.

Essentially, the regulations currently applicable to family law mirror many of the concepts found in regulations pertaining to general litigation, as contained in the original Brussels I Regulation (Council Regulation 44/2001).

Brussels 2 bis

Council Regulation 2201/2003 (known as Brussels 2 bis) sets out the basis for jurisdiction in matters relating to divorce, legal separation, or marriage annulment, such that jurisdiction lies with the courts of the member state:

  • In whose territory the spouses are habitually resident, or
  • The spouses were last habitually resident, insofar as one of them still resides there, or
  • The respondent is habitually resident, or
  • In the event of a joint application, either of the spouses is habitually resident, or
  • The applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
  • The applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the member state in question or, in the case of Britain and Ireland, has his or her domicile there.

Parental responsibility

Brussels 2 bis also governs jurisdiction in relation to matters of parental responsibility, including custody, access, and child-abduction matters. The connecting factor is the child’s habitual residence (article 8). This approach has worked well and is consistent with the provisions of the Hague Convention on Child Abduction.

Article 21 of the regulation provides, for the purpose of divorce (separation and annulment) and also for the purpose of orders relating to children, that a judgment given in a member state shall be recognised in the other member states without any special procedure being required. There are clearly very serious concerns regarding the status of Irish/British care orders, post-Brexit.

The Hague Convention on Parental Responsibility and Protection of Children 1996 – ratified by all EU member states (but which Britain could ratify again in its own right) – covers civil measures of protection concerning children, such as orders relating to parental responsibility, contact, and care.

It also determines which countries’ laws are to be applied and provides for recognition and enforcement between contracting states.

It is submitted that, where no Hague Convention applies, orders of a British court relating to parental responsibility, contact, or care of a child may be capable of recognition in Ireland on foot of the doctrine of comity, although a safer approach will likely involve obtaining mirror orders in both jurisdictions.

Comity will not provide a solution for recognition of divorce.

The Hague Child Abduction Convention provides an expeditious method for the return of a child internationally abducted by a parent from one member state to another. The convention will operate instead of Brussels 2 bis for these cases, post-Brexit, where Brussels 2 bis does not apply.

Recognition of divorce

With regard to recognition of British divorces post-Brexit, it is submitted that, as Ireland is not signatory to the Hague Convention on the Recognition of Divorces and Legal Separations, we will revert to domestic law. Britain has ratified the convention, which will give a basis for recognition with other contracting states.

Ireland should now immediately consider ratification of the convention (subject to EU consent), which includes a broader basis of recognition, including the concept of residence.

The Domicile and Recognition of Foreign Divorces Act 1986, as amended, provides for recognition of a foreign divorce (outside the EU), but only where one of the spouses is domiciled in the jurisdiction granting the divorce decree.

This will severely curtail our ability to recognise British divorces and will potentially cause a whole generation of limping marriages, as of Brexit day.

EC Regulation 4/2009 relates to conflict-of-law issues regarding maintenance obligations (spouse and child maintenance).

The regulation governs which courts have jurisdiction and which law should apply. It also covers the recognition and enforcement of decisions. The regulation grants jurisdiction in a variety of circumstances, based on the habitual residence of each party.

Post-Brexit maintenance

Preparations are in hand with regard to the enforcement of maintenance orders in a post-Brexit scenario, such that Britain has submitted instruments of accession to the 2005 Hague Convention on Choice of Court Agreements and to the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007. Post-Brexit, Britain plans to re-join these conventions in its own right.

Whether Britain adopts one of the Hague Conventions, the Lugano Convention, or some other international treaty, there will need to be a clear legal framework for the mutual recognition and enforcement of judgments across Britain and the EU, as currently exists under the Maintenance Regulation and the Re-cast Brussels Regulation.

For judgments falling outside the scope of the Hague Conventions or Lugano Convention:

  • Enforceability of British judgments in EU member states would depend on the national law of each EU member state in which enforcement is being sought,
  • Enforcement of EU member state judgments in England and Wales would be undertaken in accordance with common law rules, which would generally require fresh proceedings to be commenced in order to enforce the judgment as a debt.

MH v MH

Consider the MH v MH Court of Appeal decision of 24 January 2017, in which written reasons were set out for the dismissal of an appeal. The applicant/appellant husband married the respondent wife in 1982.

The marriage had irretrievably broken down. For the purpose of the appeal, it was assumed that both parties were domiciled in Ireland and were, prior to September 2015, habitually resident in England.

The Irish judicial separation proceedings were commenced on behalf of the husband by the issue of a special summons out of the central office of the High Court shortly after 2.30pm on 7 September 2015. It was served on the wife on 9 September 2015.

Petition

On behalf of the wife, an English divorce petition was issued by the Family Court Office in England on 11 September 2015. It was served on the husband on 15 September 2015. The evidence before the High Court was that the wife’s divorce petition in its envelope was delivered by the Document Exchange to the Family Court Office at 7.53am on 7 September 2015.

There were two motions before the High Court – the husband’s motion seeking a declaration that the Irish High Court had full and exclusive jurisdiction to deal with the proceedings, and consequential orders restraining the wife from taking any steps in the English divorce proceedings.

The wife’s motion sought a stay of the judicial separation proceedings until such time as the jurisdiction of the court first seised was determined and, thereafter, declining jurisdiction in favour of that court pursuant to article 19 of the regulation.

The Court of Appeal upheld the finding of fact made in the High Court, but found that the overall question required a reference to the CJEU.

Request

On 22 June 2016, the CJEU answered the request by making the following ruling: “Article 16(1)(a) of Council Regulation (EC) no 2201/2003 … must be interpreted to the effect that the ‘time when the document instituting the proceedings or an equivalent document is lodged with the court’, within the meaning of that provision, is the time when that document is lodged with the court concerned, even if under the national law lodging that document does not of itself immediately initiate proceedings.”

Certainly, this case highlights in some detail the provisions of the regulation applicable to jurisdiction and the current mechanism available when a dispute arises as to ‘which court’ between the courts of Ireland and the courts of England and Wales.

Imagine, if you will, precisely the same facts, as in MH v MH in a post-Brexit scenario. It is submitted that the Irish court would remain obliged to consider the provisions of the regulation when considering jurisdictional matters.

As a consequence of the 2005 European Court of Justice decision in Owusu v Jackson, pre-existing principles of private international law may not apply. The doctrine of forum non conveniens, perhaps a fairer approach in the context of family law, was specifically rejected in that case as not being compatible with the then Brussels Convention.

Essentially, the court found that the application of that doctrine was likely to affect the uniform application of the rules on jurisdiction contained in the convention.

Rules

Of course, the real question is what would happen in the English High Court in this situation, as it would no longer be bound by the lis pendens rules with regard to stay of their proceedings.

It could hear and determine the English divorce proceedings, perhaps applying the doctrine of forum conveniens, while a parallel action is being processed in an EU member state. Furthermore, where both parties are domiciled in Ireland, we are unlikely to recognise the English decree of divorce.

Will they care?

Agreement on compliance

And, you say, what if the English courts and their parliament promise that they will still comply with the regulation, that they agree with the rules but just don’t want to sign up to the whole EU/CJEU package? How then do we resolve a difference of opinion – will the English courts await a reference to the CJEU?

Or will they just proceed with litigation in their own courts based on their interpretation of the regulation as a piece of retained EU law?

The regulation cannot be interpreted in a vacuum, without considering the nature of the EU legal system within which it operates and the myriad obligations created between member states, as things currently stand.

Unique

Irish legislators should now compile a list of useful Hague Conventions (having regard to all areas of law) and immediately seek pre-clearance from the EU for immediate ratification following any Brexit. We are in a unique position to seek assurances at this time.

So, I hear you ask: “Why is a raven like a writing desk?” Of course, when Alice finally gives up trying to guess why, the Hatter admits: “I haven’t the slightest idea!”

Jennifer O'Brien
Jennifer O'Brien
Jennifer O'Brien is principal at Irish Family Law Chambers