Bridging the gap

There is no doubt that the world is getting smaller and its population more mobile.

Figures recently released by the European Union confirm that there were 300,000 marriages in the EU in 2007 between spouses of different nationalities. In the same year, of the 1,000,000 divorces, 13 per cent (140,000) were international in nature. Against this backdrop, the recent Supreme Court decision in Agbaje v Akinnoye-Agbaje [2010] UKSC 13 (see solicitorsjournal.com, 9 March 2010) and the latest developments on EU harmonisation are particularly interesting.

Having to deal with the implications of international divorces is, of course, nothing new. A series of cases culminating in Quazi v Quazi [1980] AC 744 HL highlighted the hardship that could be caused to the weaker financial party and children because of the combination of the widespread recognition in England of foreign divorces on the one hand, and the far more restrictive approach of some foreign jurisdictions to financial provision on the other. This led to the 'Law Commission Working Paper' (1980) No. 77 which, in turn, found its way into statute as part III of the Matrimonial and Family Proceedings Act 1984.

Under part III, for the first time, the English courts had the ability to revisit foreign orders. A stated intention in the Law Commission Working Paper was to alleviate what was called 'the occasional hard case' but the Agbaje decision, where a Nigerian wife was able to keep the benefit of an English court order giving her around three times as much as the Nigerian order, is likely to mean far more cases are drawn into the net. How does that fit, however, with the continuing wish to harmonise laws across different jurisdictions rather than second guess the decisions of foreign courts?

In a leading case on pre-marital agreements, Crossley v Crossley [2007] EWCA Civ 1491, Thorpe LJ highlighted what he called the 'obvious divide between the provisions of the civil law jurisdictions and the absence of any marital property tradition in the common law systems'.

The judge was keen to narrow this divide. This was in the context of giving pre-marital agreements greater weight. It will be interesting to see if the Supreme Court takes the opportunity of adding yet further force to this wish in their forthcoming decision in the appeal of Radmacher v Granatino [2009] EWCA Civ 649, heard at the end of March 2010, with a decision due in the next few months (see solicitorsjournal.com, 3 July 2009). The expectation is that great weight will be given to the fact that the agreement would have been binding in the home countries of the spouses (Germany and France).

More work to do

More generally, as far as Europe is concerned, the landscape has changed but there remains much more to do if the goal of harmonising different laws is to be achieved. On the one hand, Regulation 2201/2003 (Brussels II bis) governs jurisdiction where virtually all the European Union states are involved and the Council Regulation (EC) No. 44/2001 Brussels I Regulation and the Lugano Convention are similarly applicable in respect of orders for maintenance. However, the broader attempt at harmonisation under Rome III in 2006 did not succeed because of the failure to obtain unanimous agreement from the EU states.

This is not a train, however, which is to be shunted into the sidings. A regulation akin to Brussels I, but in relation to property, is on its way. Also, on 24 March 2010, the EU announced that ten member states had requested the bringing in of a new EU regulation to allow couples to choose jurisdiction for divorce.

That group, which does include countries such as France, Italy and Spain, does not include England. However, it does not need to, as long as member states vote that it may proceed and the European Parliament gives its consent.

The point, however, is not whether this particular regulation will impact on England but rather that looking ahead the future is likely to see more harmonisation and not less, even if, as anticipated, the Agbaje decision leads to more 'second guessing' of foreign court decisions in England. The ability to do so is already subject to the exception of the EU regulations. Is this an illustration that part III sits uncomfortably in a worldwide context with the push for greater harmon- isation and the fairest way of handling family law disputes in an increasingly globalised world?

For family law to be effective, it must rise to the challenges posed by the society in which it operates. Faced with the challenge of a more diverse population in England 30 years ago, part III sought to achieve fairness.

While that must remain the aim, of course, in family law it will be interesting, given the anticipated expansion in the use of part III in the context of an ever more globalised and mobile international population, to see whether it still remains the best way of trying to achieve a fair outcome when marriages break down.

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