Select Committee on European Communities Fifth Report


(iii) Recognition and enforcement - divorce etc

  35.    The present rules on the recognition of foreign divorces, nullity decrees and separations are contained in Part II of the Family Law Act 1986 and have been developed from the 1970 Hague Convention. In summary, foreign divorces etc obtained by judicial proceedings will be recognised if either party to the marriage was habitually resident or domiciled or a national of the country in which it was obtained. Under the proposed Convention Member States would be required, except in certain limited circumstances, to recognise all divorce decrees granted in other Member States (Article 14).

  36.    Professor Hartley said that the rules for recognition in England of foreign decrees would be significantly altered, in particular by the shift from only recognising foreign decrees where the foreign court had jurisdiction on grounds laid down by English law to the requirement to recognise all decrees from other Member States, even if they were not given on the jurisdictional grounds specified in Article 2 . He nonetheless concluded that the main advantage of the proposed Convention was that it would make it easier for United Kingdom decrees to be recognised in other Member States, though this occurred, with regard to many countries, by virtue of the 1970 Hague Conventions or for other reasons (p 9). The President's International Committee said that all the grounds of jurisdiction set out in Article 2 of the proposal would be recognised under existing rules, provided that the reference to one of the spouses still residing in the country where both were last habitually resident was amended to require that spouse still to be habitually resident there (p 23).

  37.    Particular concern was, however, expressed by several witnesses about the implications of Article 7 of the proposal. Under this provision where a Member State's court does not have jurisdiction under rules laid down by the Convention (ie on the basis of habitual residence or nationality of the parties or their joint domicile as described above) jurisdiction can be determined by that State's own laws. Professor Hartley said that this meant that English courts would have to recognise a divorce given by another Member State to, for example, an American-domiciled couple even if there was no reasonable ground for them to assume jurisdiction (p 9, Q 35). In particular, Article 7 preserves in favour of a petitioner who is a national of a Member State and habitually resident in any Member State national rules on jurisdiction where the defendant is not habitually resident, or domiciled in, or a national of, a Member State. It may therefore permit nationals of Member States who are habitually resident in the Union to take advantage of what some witnesses termed "exorbitant" jurisdictions available in other Member States (such as the nationality of the petitioner in France). The exercise of such jurisdiction would be entitled to be recognised within the European Union, even though it might not command recognition elsewhere. The President's International Committee pointed out that the result was likely to produce yet more limping marriages, recognised within but not outside the Union (p 22, Q 125).

  38.    Professor Beaumont strongly condemned the exporting of exorbitant jurisdictions under Article 7 which he regarded as a serious affront to States outwith the Union and likely to provoke adverse reactions from them (p 56). It was unclear, however, whether Article 7 created a substantial problem in practice, but Mr Karsten, for the President's International Committee, did not believe the issue to be merely a theoretical one, if the experience of the 1968 Brussels Convention was any guide (Q 125). Professor Hartley argued that Article 7 was objectionable in principle and said that even if there was no practical problem at the moment the situation could change, for example, with the future enlargement of the Union (Q 37). The Departments thought that the problem was more theoretical than real, at least at the present time. They agreed that Article 7 was objectionable in principle and said that its retention was something which they would wish to reconsider (QQ 195-7).

  39.    Change was also identified in relation to the circumstances when a foreign judgment need not be recognised. Under the proposal the grounds on which divorce decrees etc of another Member State need not be recognised are four: where recognition is contrary to public policy; where the judgment was given in default of appearance; where the judgment given in proceedings between the same parties in the Member State in which recognition is sought; or, where the judgment is irreconcilable with an earlier judgment between the parties (Article 15). The Departments said that the Convention's rules were substantially in accordance with the present grounds for refusal of recognition contained in section 51 of the Family Law Act 1986[16]. But Professor Hartley said that under English law, where the respondent did not take part in the proceedings, the court is able to consider the facts for itself in order to determine whether the foreign court had jurisdiction. This power would be lost, even where the foreign court had assumed jurisdiction on the basis of fraudulent evidence by the petitioner. "Under the new Convention we have got to recognise all divorces from Contracting States and we cannot consider whether they apply the Convention correctly or even in good faith. We cannot consider whether lies were told to the court. It has got to be automatic recognition". (p 9, Q 35). The Faculty of Advocates doubted the need for an exclusion on the grounds of "public policy" given the proposed Convention aimed to achieve harmonisation (p 62).

  40.    Finally, both the President's International Committee and Professor Hartley drew attention to the absence from the proposal of a provision similar to Article 11 of the 1970 Hague Convention, providing that a State which is obliged to recognise a divorce under the Convention may not preclude either spouse from re-marrying on the ground that the law of another State does not recognise that divorce. Professor Hartley explained that such a provision would deal with the so-called "incidental question", which could arise where, for example, a couple from a third State become habitually resident in England and obtain a divorce here. One of them then remarries. If the divorce is not recognised in the third State, a court in another Member State might refuse to recognise the second marriage on the ground that the divorced spouse's capacity to marry is governed by the law of the third State and the divorce is not recognised there. Professor Hartley said that if other Member States could refuse to recognise the divorce in such circumstances it would defeat the purpose of the Convention (p 11). Mr Karsten said:" If we are going to recognise the divorce, we must recognise the right to remarry". A provision along the lines of Article 11 of the 1970 Hague Convention, extended to cover nullity, should therefore be included in the proposal (p 23, Q 128-9). The Departments agreed that the inclusion of such a provision would be desirable (Q 198).

(iv) Recognition and enforcement - custody orders

  41.    The proposed Convention would require the courts in one Member State to recognise custody orders made during matrimonial proceedings in another Member State. Dr Clive said that recognition of foreign orders relating to children rarely if ever caused problems. Reciprocal recognition within the United Kingdom was provided for by section 25 of the Family Law Act 1986 and he did not anticipate difficulty from the extension of that rule to other European countries. In Scotland it was already the case under section 26 of that Act that orders made by the court of the child's habitual residence were recognised automatically. Nor did Dr Clive think there would a problem in relation to the recognition of orders relating to children from outside the European Union (when the court might be exercising jurisdiction on a ground permitted under Article 7 - described in more detail at paras 37-39 above). Dr Clive said: "in general it would be desirable that if a person has got a custody order from a court somewhere on genuine grounds that custody order should be recognised"(p 4, Q 44). The question, Professor Hartley said, was whether the grounds were genuine (Q 44).

  42.    Professor McClean was critical, firstly, of the apparent failure of the proposal to take the time factor into account in its rules on the recognition of custody orders and, secondly, of the limited and mandatory grounds for non-recognition. He contrasted the practice of the English courts and the position under the Luxembourg Convention. English practice recognised the reality that family circumstances change: "A decision as to ... custody or access can never be written in stone; it is always open to review". The proposal gave no indication as to how long a foreign custody order should remain enforceable. Moreover the only grounds for non-recognition were public policy, want of reasonable notice of the original proceedings, and irreconcilability with a judgment given earlier in the forum State or a non-Member State. It did not seem open to the court (as it did under the Luxembourg Convention) to say that in the light of changes in circumstances the effects of the original decision were manifestly no longer in accordance with the welfare of the child. In Professor McClean's view, the proposal " threatens a regime of such rigidity as seems calculated to lead to injustice or, at the least, unnecessary procedural complexity" (p 71).

  43.    The SFLA was particularly critical of the language of Article 17 of the proposal which read: "Under no circumstances may a foreign decision be reviewed as to its substance". This could be manifestly unjust in cases relating to children. Miss Keir said: "We must have the right to review if the interests of the child demand" (p 25, Q 143). For the President's International Committee, Mr Karsten responded: "It is fundamental that if you have a system of recognition of judgments you do not re-open a judgment on its merits". The Departments agreed (Q 213). Mr Karsten referred to the fact that the 1996 Hague Convention (Article 23) expressly permitted the court to refuse to recognise a foreign custody order where it was "manifestly contrary to public policy ... taking into account the best interests of the child"(QQ 145-6). In the SFLA's view, the courts must be allowed to retain some degree of flexibility when being asked to enforce orders relating to children and the text of the Convention should be amended, perhaps along the lines of Article 23 of the 1996 Hague Convention, to permit this (p 25, QQ 143-4). For the Departments, Mr Parker confirmed that the latest version of the Convention was in line with the Hague Convention (Q 214).

  44.    The President's International Committee also queried the appropriateness of the grounds of non-recognition contained in Article 15 to custody orders. Article 15(1)(d), in particular, required modification to allow non-recognition in cases of inconsistency with a later judgment, not an earlier one, as is provided in Article 23(2)(e) of the 1996 Hague Convention (p 23).


  45.    As mentioned in the introduction to this Report there are a number of existing international instruments in the field. Reference has already been made to them when considering the general question of the need for the Convention and when considering some of the detail of its provisions. In this section we consider the proposed formal relationship of the Convention with other international instruments, of which there are, to recap, four main ones:

The interaction of these conventions with the present proposal is dealt with in Articles 3A and 40-42.

  46.    Article 3A requires Member States' courts to "exercise their jurisdiction in conformity with" the 1980 Hague Convention on International Child Abduction. The object of that Convention, as mentioned above, is to protect children from the harmful effects of their wrongful removal from the country of their habitual residence to another country or their wrongful retention in some country other than that of their habitual residence. The Convention lays down a procedure (involving the establishment of Central Authorities through whom claims for return of children are initially made) and rules restricting enquiry by the courts into existing custody arrangements in order to ensure the prompt return of the child to the State of his habitual residence. Witnesses stressed the importance of the Convention and were agreed that the present proposal should not in any way impede its operation. It was generally agreed that Article 3A, as drafted, should not have any detrimental effects.

  47.    While Article 40 provides that the proposed Convention will supersede certain listed bilateral conventions[17], the basic rule in Article 42 appears to be that the proposal will not, subject to certain exceptions, affect other conventions, past or future. It is expressly stated that the proposal will not affect the 1970 Hague Convention. Professor Hartley said: "the idea is that, in principle, these Conventions are all supposed to mesh together and to provide a sensible answer. Whether they actually do that is another problem, particularly whether the EC one meshes with the Hague Conventions. That, I think, could be questioned". Professor Hartley noted a paradoxical result. It might become easier for decrees of United Kingdom courts to secure recognition in those Member States that are not parties to the Hague Convention than in those that are. Likewise, decrees from other Member States that are not parties to the Hague Convention might be more easily recognised in the United Kingdom than those of Member States that are (p 10, Q 57).

  48.    The President's International Committee also drew attention to the uncertainty of the implications of Article 42. It appeared a dangerous provision because it might open the way to recognition within the European Union of further divorces which would not qualify for recognition under the 1970 Hague Convention, even in relation to parties resident in a Member State (p 22). The Commission favoured provisions governed by the maximum effectiveness rule, which would give precedence to whichever provision in a convention was the most conducive to the free movement of judgments (p 59). The Departments said that the intention was that, with the exception of the Hague Child Abduction Convention, the Convention should have precedence over others where it applies. They acknowledged that there was some uncertainty concerning the effect of Article 42 and said that the provision was likely to require amendment in the forthcoming negotiations (p 42).


  49.    The proposal contemplates the Court of Justice being given jurisdiction in relation to the Convention. The draft text, however, contains no details. Under the Brussels Convention on jurisdiction and recognition of judgments in civil and commercial matters the Court has an interpretative jurisdiction on reference from national courts analogous to that under Article 177 of the EC Treaty. The Commission said that the 1968 Brussels Convention had greatly benefitted from a uniform interpretation by the Court of Justice and that most Member States agreed that the same role should be conferred on the Court as regards the proposed Convention (p 58). Dr Clive thought that if the European Court did not have jurisdiction over the proposed Convention there would be potential disadvantages if real problems emerged, for example, over the interpretation of "habitual residence" and there were severely diverging interpretations in different Member States (Q 32). (The Faculty of Advocates pointed separately to the uncertainty as to the meaning of "habitual residence" and urged that the Convention contain a definition (p 60).

  50.    Professor Beaumont opined that one of the great advantages of the European Union being involved in private international law was that it can provide uniform interpretation through the Court of Justice. But he was concerned in the present context about the implications of the time taken (typically 18 months or longer) for the Court to deal with a reference for a preliminary ruling: "The possibility of a case concerning the custody of small children being referred to the European Court and a decision not being reached for more than 6 months is untenable ... [T]he delay... would pre-empt the decision on the merits about parental authority". Practitioners also expressed concern over the time which might be taken by the Court. Both the President's International Committee and the SFLA considered that any delay in a case where children were involved would be prejudicial to their interests. Mr Karsten said: "It would be incompatible with the principle that children's welfare requires speedy decisions" (QQ 135, 141).

  51.    Professor Beaumont proposed that either custody matters be removed from the scope of the Convention or the Court of Justice should not be given jurisdiction (p 55). Other witnesses looked for a less drastic solution. Professor Hartley thought the only possible role for the European Court in the circumstances would be "some system under which the parties could not make a reference from the national court to the European Court but if there were diverging decisions in different countries, then a Member State, say the United Kingdom, could ask the European Court for an advisory opinion" (Q 33).

  52.    Professor Arnull also concluded that the Court of Justice should not be given jurisdiction to give preliminary rulings on the interpretation of the Convention at the request of national courts. Instead, the competent authorities of the Member States and the Commission should be empowered to request the court to give a ruling on the interpretation of the Convention where judgments given by the courts of one Member State conflicted with those of the courts of another Member State or the Court of Justice[18]. The ruling given by the Court of Justice should be binding as to the future, but should not affect the judgments giving rise to or otherwise preceding the reference. In addition, a system, co-ordinated by the Court of Justice, for exchanging information about judgments of national courts on the Convention should be established. National courts should be required to take account of such judgments when considering the effect of the Convention in particular cases before them (p 53). Mr Karsten, for the President's International Committee, thought that even such a scheme was not without difficulty: "Since emotions run so high in matters relating to children there is a special reason for concern about engendering a feeling of injustice in a parent who learns later that he was wrongly denied custody"(Q 142).

  53.    The Departments recognised the beneficial role which the Court of Justice had had in relation to the 1968 Brussels Convention. However, as regards the present Convention, they maintained an open mind. Mr Watherston said: "We think that in this context of Brussels II the balance of advantage as between, on the one hand, having uniform interpretation and the disadvantage of expense and delay on the other is by no means clear". Delay in cases relating to children would be very serious and undesirable. The Departments agreed that Professor Arnull's proposal was well worth considering and acknowledged that it might help to give an authoritative interpretation on doubtful points without affecting the parties (QQ 202-5).

16   Under the 1986 Act a court can refuse recognition (i) if the foreign divorce was granted at a time when it was irreconcilable with a previous decision given, or entitled to recognition, as to the subsistence or validity of the marriage; (ii) if at the time the divorce was granted there was, according to United Kingdom law, no subsisting marriage; (iii) if there was either a lack of proper notice of the divorce proceedings to one party or there was a lack of proper opportunity for a party to take part in the proceedings; (iv) if (in the case of divorce etc other than by means of proceedings) there is a lack of official documentation; and, (v) if recognition would be manifestly contrary to public policy.  Back

17   The Departments pointed out that the list in Article 40 did not include the 1936 Convention between the United Kingdom and Belgium (S.I. 1936/1169) (p 42). Back

18   Professor Arnull drew the Committee's attention to the precedent (albeit unused in practice) contained in the Protocol to the 1968 Brussels Convention. He proposed the addition of the Commission as a party who might trigger a reference to the Court of Justice on the ground that "the Commission might sometimes be able to take a more panoramic and objective view of [the Convention's] functioning than the competent authorities of the Contracting States". Back

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