DIVORCE AND DISSOLUTION

This chapter will consider the private international law rules applicable to the dissolution of those formalised personal relationships considered in Chapter 7, primarily opposite-sex marriage. These rules first developed through the common law before later being subject to statutory codifi-cation and, more recently, they have become the focus of a number of European harmonisation initiatives. Issues of jurisdiction, choice of law and recognition will each be considered in turn.

JURISDICTION

The Domicile and Matrimonial Proceedings Act 1973 created a new set of jurisdictional principles which replaced the law in force prior to 1 January 1974. This Act provided that the Court of Session would have jurisdiction to entertain an action for divorce if either of the parties to the marriage was domiciled in Scotland on the date the action was begun, or, had been habitually resident in Scotland throughout the period of 1 year ending with that date (s 7). These rules remained in place until 1 March 2001 when Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matri-monial matters and in matters of parental responsibility for children of both spouses (commonly referred to as the “Brussels II Regulation”) came into force. This Regulation introduced a new set of uniform jurisdictional rules in matrimonial matters and facilitated the almost automatic recog-nition of matrimonial judgments throughout the European Union, with the exclusion of Denmark. The Brussels II Regulation was quickly revised and replaced by Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (commonly referred to as the

“Brussels IIa Regulation”). The Brussels IIa Regulation incorporates the provisions relating to matrimonial matters found in the earlier Brussels II Regulation with no significant alternations, although it does expand the provisions relating to parental responsibility which will be consid-ered in Chapter 11. From 1 March 2005, the Brussels IIa Regulation became directly applicable in all EU Member States, once again excluding Denmark.

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Following the entry into force of the Brussels IIa Regulation the Scot-tish jurisdictional rules are now contained in the amended s 7(2A) of the 1973 Act to the effect that the Court of Session will have jurisdiction to entertain an action for divorce or separation if (and only if ) the Scottish courts have jurisdiction under the Regulation, or, the action is an excluded action and either of the parties to the marriage is domiciled in Scotland on the date when the action is begun. Section 7(2A) thus identifies both the primary grounds of jurisdiction, those available under the Regulation, and a single residual ground of jurisdiction applicable when the action is an

“excluded” action. Section 8 provides further rules granting jurisdiction to the sheriff courts if certain localising criteria are met.

Primary grounds of jurisdiction

Article 3 of the Brussels IIa Regulation sets out seven jurisdictional bases.

The order in which they appear in the article is immaterial as there is no hierarchy and all grounds have an equal status and exclusive effect. Article 3(1) provides that, in matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State:

(a) in whose territory:

i. the spouses are habitually resident, or

ii. the spouses were last habitually resident, insofar as one of them still resides there, or

iii. the respondent is habitually resident, or

iv. in the event of a joint application, either of the spouses is habit-ually resident, or

v. the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or vi. the applicant is habitually resident if he or she resided there

for at least six months immediately before the application was made and is either a national of the Member State in question or, in the case of the United Kingdom and Ireland, has his or her “domicile” there;

(b) of the nationality of both spouses or, in the case of the United Kingdom and Ireland, of the “domicile” of both spouses.

Priority has been afforded in Art 3 to the connecting factor of habitual resi-dence, utilised in a number of different circumstances, but there remains a role for the traditional connecting factors of nationality and domicile. This is particularly so in Art 3(1)(b) through which jurisdiction can be founded on the basis of joint nationality/domicile regardless of where the spouses are habitually resident. Where spouses each have dual nationality in the

DIVORCE AND DISSOLUTION 101 same Member States Art 3(1)(b) gives the courts of either of those states jurisdiction to hear matrimonial proceedings and the spouses can seise a court in the Member State of their choice (Hadadi v Mesko (2009)). Article 3(1)(a)(iv) is not applicable in Scotland. Articles 4 and 5 provide two further ancillary grounds of jurisdiction, relating to counterclaims and conversions respectively.

Article 3(2) provides that, for the purposes of the Regulation, “domicile”

shall have the same meaning as it has under the legal systems of the United Kingdom and Ireland. In other words, the Regulation adopts the ‘tradi-tional’ definition of domicile and reference should be made to the discus-sion of this concept found in Chapter 2. In contrast, “habitual residence”

is to be given an autonomous meaning for the purposes of the Brussels IIa Regulation – a meaning that will not necessarily be the same as the UK domestic meaning, nor the same as the meaning ascribed to the concept in other instruments. Habitual residence under the Regulation is meant to identify the place where an individual has established, on a fixed basis, his permanent or habitual centre of interests. In Marinos v Marinos (2007), Munby J held that for the purposes of the Regulation a person can have only one habitual residence – a finding that is directly at odds with the interpretation given to the domestic understanding of habitual residence for the purposes of divorce jurisdiction in the case of Ikimi v Ikimi (Divorce:

Habitual Residence) (2001). In Marinos, Munby J also considered the meaning of “resided” for the purposes of Art 3(1)(a)(v) and (vi) and whether this was to be understood as requiring habitual residence for the requisite period, or some lesser form of residence. Munby J believed the latter was the correct interpretation and that only residence simpliciter need be established. This view was, however, challenged by Bennett J in Munro v Munro (2007) and it is yet to be settled definitively.

Residual ground of jurisdiction

Aside from jurisdiction under the Regulation, the Scottish courts will also have jurisdiction under s 7(2A) of the 1973 Act, if the action is an excluded action and either of the parties to the marriage is domiciled in Scotland on the date when the action is begun. To understand what is meant by an excluded action it is necessary to refer to Arts 6 and 7. Article 6 states that a spouse who is habitually resident in the territory of a Member State, or a national of a Member State, or, in the case of the United Kingdom and Ireland, has his or her domicile in the territory of one of these two Member States, may be sued in another Member State only in accordance with Art 3 (or in accordance with the ancillary jurisdictional grounds of Arts 4 and 5).

Article 6 thus requires that a spouse with a connection to a Member State,

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whether through habitual residence, nationality or domicile, may only be sued in another Member State if the courts of that other state have jurisdic-tion under Art 3. Consequently, the Scottish residual jurisdicjurisdic-tional ground of sole domicile may not be utilised by a “Scottish” spouse as against a spouse who is “European” in the sense of Art 6, whether or not that spouse is currently living in the European Union. It is only when a spouse is not

“European” that a Scottish court may be able to utilise the residual ground of jurisdiction. However, Art 6 must be read in conjunction with Art 7(1) which provides that where no court of a Member State has jurisdiction pursuant to Art 3 (or Arts 4 and 5), jurisdiction shall be determined, in each Member State, by the laws of that state. Accordingly, the Scottish ground of residual jurisdiction will become effective only when, first, the respondent spouse is not “European” in terms of Art 6, and, second, no other court is capable of claiming jurisdiction under the Regulation (Art 7).

These two requirements are cumulative and both must be satisfied before recourse may be had to the residual ground of jurisdiction (Sundelind Lopez v Lopez Lizazo (2007)).

Conflicts of jurisdiction

With such broadly drawn jurisdictional rules it is quite possible that spouses may be able to bring matrimonial proceedings in the courts of more than one country. For example, under the Regulation a married Italian couple living in Scotland would be able to bring proceedings in both Italy ( joint nationality: Art 3(1)(b)) and Scotland ( joint habitual resi-dence: Art 3(1)(a)(i)) The solution adopted by the Scottish courts vis-à-vis such conflicts of jurisdiction will depend upon whether jurisdiction has been taken under the Regulation or via the residual ground of jurisdiction.

Lis pendens

The Brussels IIa Regulation follows the approach of the Brussels I Regu-lation when allocating jurisdiction between competing legal systems by implementing a “first come, first served” rule of strict priority. Accordingly, Art 19 provides that, where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established (Art 19(1)). Once the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court (Art 19(3)). This applies when proceedings are brought between the same parties, even if the precise cause of action may differ. Article 16 provides clarity as regards when a court shall be deemed to be seised.

DIVORCE AND DISSOLUTION 103 Mandatory sists

As Art 19 refers to proceedings being brought before the courts of different Member States, conflicts wholly internal to the United Kingdom continue to be governed by the system of mandatory sists regulated by Sch 3, para 8 to the 1973 Act. If the four conditions contained in para 8 are satisfied then a Scottish court must sist the action before it in favour of the courts in a

“related jurisdiction”, ie courts elsewhere in the British Isles as defined by Sch 3, para 3. The intention behind this provision is to ensure that the case is heard in the courts of the country in which the parties had their last, or most recent, matrimonial residence and, due to their mandatory nature, there is little practical difference between the application of Art 19 of the Regulation and Sch 3, para 8 to the 1973 Act.

Discretionary sists

Paragraph 9(1) of Sch 3 to the 1973 Act makes provision for a consisto-rial action to be sisted, before the beginning of the proof, whether in the Court of Session or a sheriff court, if it appears that any other proceedings in respect of the marriage in question or capable of affecting its validity are continuing in another jurisdiction and that the balance of fairness (including convenience) as between the parties to the marriage is such that it is appropriate for those other proceedings to be disposed of before further steps are taken in the action in the Scottish court. In considering the balance of fairness and convenience the court is required to have regard to all factors appearing to be relevant, including the convenience of witnesses and any delay or expense which may result from the proceedings being sisted, or not being sisted (Sch 3, para 9(2)). In De Dampierre v De Dampierre (1988) it was established that this terminology was the statutory equiva-lent of the doctrine of forum non conveniens and that the approach taken to the latter was equally applicable to the former. Further detail regarding this approach can be found in Chapter 3 but, in short, before the court will exercise its discretion under para 9(1) the respondent in the divorce proceedings will have to show that that there is another available forum which, prima facie, is clearly more appropriate. If successful in this plea, a sist will be granted unless the petitioner can show circumstances by reason of which justice requires that a sist should nevertheless not be granted. It is not enough for the petitioner simply to point to the loss of a legitimate personal or juridical advantage if required to litigate abroad.

While Art 19 will apply if jurisdiction is taken under the Regulation, the option to sist an action under Sch 3, para 9 remains available when proceedings have been brought in Scotland under the residual juris dictional ground of the Scottish domicile of either spouse. However, as with the

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Brussels I Regulation, questions have arisen as to whether a court in the United Kingdom which takes jurisdiction under the Regulation may sist an action in favour of a court in a country outside of the European Union.

These questions are answered clearly in Scotland by s 11(2) of the 1973 Act which states that the power to sist an action is “subject to Article 19”. Thus, in Scotland, once jurisdiction is taken under the Regulation the lis pendens approach to competing jurisdictions must be followed and a discretionary sist will not be competent. The situation is less clear in England, however, and in the case of JKN v JCN (2010) proceedings taken under Art 3 were stayed under the equivalent English provisions (1973 Act, Sch 1, para 9) in favour of New York.

Civil partnership

The jurisdictional rules relating to civil partnerships are detailed in ss 219 and 225 of the Civil Partnership Act 2004, and the Civil Partnership ( Jurisdiction and Recognition of Judgments) (Scotland) Regulations 2005 (SSI 2005/629), reg 4. The 2005 Regulations, made under the power provided by s 219, partially replicate Art 3 of the Brussels IIa Regulation by providing that proceedings for the dissolution or annulment of a civil partnership may be brought in the Court of Session if both civil partners are habitually resident in Scotland; both civil partners were last habitually resident in Scotland and one of the civil partners continues to reside there;

the defender is habitually resident in Scotland; the pursuer is habitually resident in Scotland and has resided there for at least 1 year immediately preceding the date on which the action is begun; or, the pursuer is domi-ciled and habitually resident in Scotland and has resided there for at least 6 months immediately preceding the date on which the action is begun.

Proceedings for dissolution may also be brought in a sheriff court if the additional localising requirements of s 225(2) of the 2004 Act are satisfied.

If jurisdiction cannot be founded on one of the above grounds then s 225 provides two further bases on which the Court of Session will have jurisdiction. First, s 225(1)(b) grants jurisdiction on the ground that either civil partner is domiciled in Scotland on the date when the proceedings are begun. Again, an action may be brought on this ground in a sheriff court if additional requirements are fulfilled. Finally, s 225(1)(c) provides a ground of jurisdiction based not on a personal connection between the parties and Scotland, but on the fact that the partnership was registered in Scotland.

This ground may be utilised only in the Court of Session when that court is satisfied that it is in the interests of justice to assume jurisdiction in the case. This final ground allows the Scottish courts to act as a forum necessitatis most obviously in circumstances where a civil partnership was previously

DIVORCE AND DISSOLUTION 105 registered in Scotland by parties one of whom now wishes to dissolve the relationship but lives in a country which does not permit such proceedings.

Although the primary grounds of jurisdiction are modelled on the Brussels IIa Regulation, such replication is not extended to the lis pendens rule of Art 19 and, instead, provision is made in s 226 and accompanying secondary legislation for the implementation of rules replicating the system of mandatory and discretionary sists found in Sch 3 to the Domicile and Matrimonial Proceedings Act 1973.

CHOICE OF LAW

At common law, when only the courts of the husband’s domicile had juris-diction, and the domicile of the wife would follow that of her husband, no choice of law issues arose as both the lex fori and the lex domicilii would be the same. The liberalisation of the grounds of jurisdiction introduced by the 1973 Act, accompanied by the abolition of the married woman’s domicile, meant that such unity was no longer guaranteed. The possibility of a lack of unity between the forum and the domicile or nationality of the spouses has been further increased by the broad jurisdictional rules of Art 3 based principally on habitual residence. While many European coun-tries have acknowledged choice of law issues in divorce by allowing for the application of a law other than that of the forum, usually the law of the parties’ common nationality, the United Kingdom has rigidly adhered to the application of the lex fori. As a consequence, the United Kingdom decided not to opt into Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced co-operation in the area of the law applicable to divorce and legal separation (commonly referred to as the

“Rome III Regulation”). This Regulation sets out uniform rules of appli-cable law for divorce and legal separation in the 14 participating Member States based on a limited degree of party autonomy to choose the appli-cable law and, in the absence of choice, a cascade of alternatives.

RECOGNITION OF FOREIGN DECREES

Historically, a foreign decree of divorce would be recognised only if it were granted by a court of the husband’s domicile. This strict rule was gradually loosened over time, with the decision in Indyka v Indyka (1969) greatly increasing the circumstances in which a foreign decree of divorce would be recognised. This was quickly followed by the Hague Conven-tion of 1 June 1970 on the RecogniConven-tion of Divorces and Legal SeparaConven-tions, implemented in the United Kingdom by the Recognition of Divorces and

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Legal Separations Act 1971. The 1971 Act was repealed and replaced by the Family Law Act 1986, Pt II of which contains the relevant rules for the recognition of decrees granted both in the British Isles and overseas.

This reference to “overseas” decrees must now be understood in light of the harmonised European rules of recognition found in the Brussels IIa Regulation which apply to judgments given in a Member State. Thus, the Regulation will apply to divorces granted in a Member State (excluding Denmark), while the 1986 Act continues to govern the recognition of

“non-European” divorces, which includes divorces from elsewhere in the British Isles and from Denmark. Section 37 of the Family Law (Scot-land) Act 2006 introduced amendments to the Domicile and Matrimonial Proceedings Act 1973 which permit the Court of Session and the sheriff court to grant declarator of recognition, or non-recognition, of a matri-monial decree granted outside the European Union.

Recognition under the Brussels IIa Regulation

Recognition under the Brussels IIa Regulation