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Cross-border divorce cooperation little use for UK

Hughes Fowler Carrutherss Alex Carruthers explains why the UK has opted out of new EU divorce laws.

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The change comes into effect in mid-2012 and affects Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain.

But what does “enhanced co-operation” mean and does it really spell the end of the forum shopping fiasco where couples vie with each other to apply for divorce first so that they can secure a jurisdiction likely to be most favourable to them?

The jurisdiction “race” is a real one, as it can make a material difference to the financial settlement that either the husband or wife walks away with.  The EU decision is an attempt to try to create a more level playing field.

The EU’s decision hinges on the concept of “applicable law”, i.e. the Court dealing with the divorce should apply the law which is most applicable to the marriage of the parties. So, for example, parties who are divorcing in France may have to use the principles of German law to determine how their assets are to be divided if the parties have the closest connections with Germany, not France.

There will therefore be less incentive for such couples to issue in different countries as they will all apply to (in this case) German law.

Potential problems

It does however pose a number of problems.

Certainly, the U.K. (one of the countries that has not signed up proposals) is unlikely to agree to such harmonisation in the near future.  The reasons for this are numerous. 

A country’s regime of asset division and maintenance obligations on divorce does not sit alone.  It is part of the culture (both legal and social) of that country. 

For example, the English civil legal system has over the centuries developed a number of concepts and structures that are unknown in other parts of Europe.  In particular, the use of Trust structures to hold assets is prevalent here whilst unknown elsewhere.  The England divorce court, when seeking to establish the true picture of an individual’s financial position and then to put effect to orders which are fair between the parties, has had to develop a system which both recognises trusts and can deal with them effectively.  Many other EU countries have no such tools available to their divorce courts. 

Furthermore, what each country considers is an appropriate financial award on divorce is linked to various factors within that society.  For example, in Sweden there is a very well funded social services network and therefore there is little need for maintenance orders to be made for spouses upon divorce.  In England, the social services network is not as well funded and therefore maintenance orders are much more prevalent. 

It would, for example, be unfair for a Swedish woman living here to be given no maintenance because Swedish law says it is appropriate (based on the social services system in that country), but for that same person to then fall back on the much weaker English social services network.

At present, if one or both parties live in England (or both of them are domiciled there), they can apply to be divorced here. The Court will apply English law to their divorce notwithstanding the nationality and background of the parties. 

A fundamental concept in the English Court is that we are all the same before the law and the law treats us all equally. There is not one law for a German and another for a Spanish citizen. 

There are also practical problems with a system of “applicable law”.  In particular, about how the English Court would know the intricacies of foreign law and how to apply it in the case before it.  In my experience, where countries, for example Spain, apply English law to a divorce in their Court, they do not fully understand the concepts involved and the result bears no resemblance to what an English Court would have done. 

In this instance, the UK’s default position of being a part but apart from Europe is justified.

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