Rome III is a draft legislation proposed by the European Union in mid 2006 intended to come into force across the European Union in March 2008 and requiring all European Union countries to adopt in divorce and ancillary financial matters not necessarily the law of the land, English law in England, but the law of the country with which the couple concerned in the family law proceedings had the closest connection. So a French couple living long-term in England would have their divorce and financial proceedings in England decided by an English judge and English lawyers applying French law. It would not be limited to the European Union families. An Australian couple or a Nigerian couple getting divorced in England where they have presently jurisdiction would have Australian or Nigerian law applied. This presents colossal problems in practice with knowing what is the relevant foreign law and how it would be applied in the particular circumstances of the case and differentiating between the law itself and the procedure.
News has been reaching us over the past couple of weeks that the draft legislation has been shelved by the European Union. This was first posted by the Law Society Brussels office which is invariably very reliable and follows closely the European Union developments. However there was no official confirmation. From our own inquiries, it has now been confirmed to us by a senior judicial source and a senior government source. Accordingly we decided that the time was right to post this information.
It is thoroughly to be welcomed. The proposed change would have had probably the greatest transformation on English family law for a century. It would greatly have added to the costs of resolving a case, added greatly to the delays of resolution and made it much more difficult to settle cases because of the uncertainty of what was the foreign law. We are very pleased. We have been campaigning against the introduction of applicable law for several years.
However other legislation coming from Europe also features applicable law yet this is legislation which is desperately needed, such as improved reciprocal enforcement of family law financial orders across Europe. We hope very much that a way can now be found to introduce this legislation without the necessity of also imposing applicable law.
We continue to urge the European Union law reformers to amend the jurisdictional provisions in Brussels II by creating a hierarchy of jurisdiction for divorce. This would show the country with the closest connection to the family and this country would then deal with the divorce and other family law proceedings. In such a way, the race to issue in Brussels II which is so hated and so contrary to the whole ethos of settlement orientated resolution and reconciliation opportunities, would no longer be required. Also applicable law would no longer be an issue as the country with the closest connection to the family would apply its own local law.
If you require any further information on this, please contact David Hodson at iFLG
]]>The details are as follows:
The International Family Law Group
Hudson House
8 Tavistock Street
London
WC2E 7PP
Our numbers are:
Phone: +44 (0) 203 178 5668
Fax: +44 (0) 203 178 5669
An important decision by Mr Justice Munby in the English High Court has decided that in European Brussels II cases:
The decision has very considerable relevance for international families with ongoing strong connections with two or more countries. It potentially broadens the opportunity to claim divorce jurisdiction in the more favourable country.
A commentary by David Hodson can be found on the information pages and is being published in the December edition of Family Law magazine.
]]>David Hodson will post a full article soon. The case has strengthened the equality sharing principle and drawn back from some of the comments made in Miller in the House of Lords. Trust funds treated as a family asset, rather than the niceties and artificialities of trust law, was upheld. Special contribution if inequitable to disregard can be a reason to depart from equality, but then based on the manner of accrual not necessarily the sheer size, but only in range of departure of 55% – 67%. Departure from equality was warranted in this case due to his special contribution and the fact she was receiving the more secure, less risky assets. The Court called for reform of Parliamentary financial provision law. The full article follows but iFLG will happily deal now with any questions about the implications of the judgement. Contact dh@iflg.uk.com
]]>Available in bookshops, online and from us is the excellent book by Helle Amin called “Reunited in the Desert”, just published by John Blake. It is the story of a Danish woman who thought her marriage was happy with four lovely boys until one day she returned home from a shopping trip to discover her husband had snatched them to his home country of Saudi Arabia. She journeyed into that country, took a job locally and embarked upon a fight for her children through the male dominated Saudi courts. After huge resistance she managed to see her children. She preserved. Against all odds and after a long struggle and with help from the English Family Courts, she succeeded in gaining their return to England and to be reunited with their mother, the author. She was awarded the Tesco Mum of the Year award.
Ann Thomas of The International Family Law Group acted for her in the English child abduction proceedings.
It is a book which gives hope and encouragement to the thousands of women in a similar situation every year. It contains a post script from Denise Carter, director of Reunite, the charity which helps parents whose children have been abducted. It is hoped that a book launch will be held soon. Copies of the book are available from iFLG. Please contact us for details.
]]>David Hodson has been asked by Family Law Week to write a commentary on the case and it will also appear here within a week of the judgement with an initial note by us on the outcome appearing here within a day or so of the decision.
]]>