EU offers fastest options for couples: ThePost.ie


TCH Archives > Sunday Business Post > 2007/03/25 > EU offers fastest options for couples

EU offers fastest options for couples
Sunday, March 25, 2007 - By Geoffrey Shannon
The initial reluctance to apply for a divorce has evolved into a modest increase in the number of divorce applications.

Irish society has changed in the last ten years. We now have 30,000 millionaires living in Ireland. Inter-country marriages are becoming more and more common. It is estimated that one in every ten marriages in the EU is now bi-national, while six million EU citizens have moved to live in another member state.

These trends are reflected in terms of marriage breakdown. Recent statistics reveal there are 857,000 divorces each year in the EU, of which 170,000 have a cross-border element. This is significant, as it is not uncommon for a spouse to return to his or her country of origin after the breakdown of a marriage.

The most dramatic development in family law since the introduction of divorce in Ireland was the EU Regulation known as Brussels II, which came into force on March 1, 2001. This regulation, which was updated on March 1, 2005, has had far-reaching effects on Irish family law. Under Brussels II, a person may apply for a divorce, legal separation or marriage annulment in any EU state - excluding Denmark, the Channel Islands and the Isle of Man - if habitually resident (or living) there for a year.

If an application is made to an Irish court to recognise a divorce granted in a foreign court under Brussels II, the court here cannot challenge the decision on the basis that such a judgment would not have been granted in Ireland. The regulation has, therefore, radically altered the basis on which divorce decrees are recognised in Ireland.

In summary, Brussels II sets out a number of rules for deciding jurisdiction (that is, which country’s courts can hear a case) in family law disputes in the EU. It requires courts of member states to recognise and enforce the family law judgments of other member states.

When a court in one member state is asked to hear a divorce case, it cannot refuse on the grounds that the courts of another country may be more appropriate. (For example, it cannot decline to hear the matter because the parties have strong ties to another country and correspondingly few in the country of the court hearing the case.) This may lead couples involved in a transnational marriage breakdown into an undignified race to see who can get to court first, undermining attempts at reconciliation or mediation.

Brussels II is about where you issue your divorce proceedings, rather than the financial and property aspects of the divorce. But the choice of jurisdiction may well determine how the court deals with the property and financial aspects of the case. The Irish High Court ruled on the implications of Brussels II in the 2005 case of YNR v MN. The husband filed for divorce in France in November 2002 and the wife instituted family proceedings in Ireland the following month.

The Irish High Court ruled that, even though the ‘‘main seat of the marriage’’ in the case was Ireland, and the land, bank accounts and other property were in Ireland, it had no jurisdiction to hear the matter because, under Brussels II, the court in which the application was first made must hear the case. As the case was first brought in a French court, that court had the right to hear the matter and decide the issues.

A more frequent example of the operation of Brussels II might be where an Irish resident couple lived close to the Border with the North. Simply by renting property north of the Border, a spouse might be able to establish grounds to institute divorce proceedings in Britain after one year. Under Brussels II, once the court in the North accepts jurisdiction and agrees to deal with the matter, the Irish courts must decline to hear the case, even if the matter is challenged by the other spouse.

Brussels II also requires the Irish courts to recognise a divorce granted in those circumstances, even though Ireland’s Family Law (Divorce) Act requires that couples live separate and apart for four out of the previous five years before issuing divorce proceedings.

Clearly, spouses can obtain a divorce in a much shorter period under Brussels II. There is a very real concern that the Brussels II regime is being used to circumvent Ireland’s rigid divorce rules by allowing parties resident here to seek judgment elsewhere.

Last year, the British House of Lords delivered two groundbreaking judgments on divorce. In the Miller case, the law lords held that Melissa Miller could keep the £5 million (€7.3 million) she was awarded by the Court of Appeal, after a childless marriage lasting less than three years to Alan Miller, a multi-millionaire fund manager. This judgment indicates that, even in a short marriage, a spouse might be entitled to a 50-50 split of the wealth generated during that marriage.

In another case, Britain’s House of Lords considered the case of Julia McFarlane, who had given up a promising career as a solicitor during a 16year marriage to Kenneth McFarlane, a tax partner. The law lords held that she was entitled to £250,000 (€368,308) a year from her husband for an indefinite period, rather than for a mere five years, as held by the Court of Appeal. The couple had previously agreed a 50-50 split of their £3 million (€4.4 million) worth of assets.

The importance of these rulings is that they further consolidate England’s reputation as one of the most favourable countries for the home-maker and child-carer to bring a divorce case. The English courts appear to be more generous to stay-at-home spouses than the Irish courts.

In fact, the English courts tend to view marriage as an equal partnership in which parties should normally be entitled to a 50-50 share of the ‘‘financial fruits of the marriage partnership’’.

An Irish court has never awarded half of the marital assets to the home-maker. Indeed, the Supreme Court has rejected the yardstick of equality when dividing assets on divorce. The tendency in Ireland is to award one-third of the net assets to the home-maker. This is surprising, given the protection afforded by Article 41.2.1 of the Constitution to ‘‘life within the home’’.

Brussels II is likely to be used by wealthy Irish homemakers in an attempt to benefit from the House of Lords judgments in Miller and McFarlane. The regulation has undoubtedly encouraged divorce planning and ‘forum shopping’.

This involves choosing to file for divorce in the country that best suits your particular claim. In this regard, the Catholic countries offer a better deal for the breadwinner, whereas England is now becoming increasingly attractive for the home-maker.

Brussels II rewards the party who litigates first. This militates against concentrated efforts over many years by all involved in the family law system to promote the merits of reconciliation and mediation.

In cases with an international element, the family law solicitor has the unenviable task of advising the client seeking a divorce to consider reconciliation and mediation, while warning the client that, if he or she delays, the other spouse may secure exclusive jurisdiction in another member state.

Geoffrey Shannon is a solicitor and author of Child Law (Round Hall, 2005). He is the Irish expert on the Commission on European Family Law and is editor of the Irish Journal of Family Law.