«David Hodson Introduction In the second week of November 2006, England and Wales was within a few days of having imposed upon it the concept of ...»
FAIRNESS IN FAMILY LAW ACROSS EUROPE:
A PAN EUROPEAN IDEAL
OR A PANDEMONIUM OF CULTURAL CLASHES?
In the second week of November 2006, England and Wales was within a few days of having imposed
upon it the concept of applicable law in family law proceedings. No longer would English judges, lawyers and mediators have settled their cases according to concepts of fairness and justice based upon a millennium of English cultural, religious and similar values. Instead, some English family law settlements would be based on concepts of fairness totally alien to the English family law process yet in accordance with conventional fairness of the home country of the couple concerned.
A consequence of the decision by the government not to opt in to Rome III is that family law in England and Wales will still be pursuant to English law.
Nevertheless, England is probably the most cosmopolitan country in the world. England is considered a very favourable family law jurisdiction. London has recently been described by the Court of Appeal as the divorce capital of the world. England is an extremely tolerant culture. Many family lawyers are keenly aware of the very different cultural backgrounds of their clients; backgrounds which are sometimes at odds with conventional concepts of fairness. Many of these clients are now nationals and residents of England. But many are from Europe and elsewhere, living and working in England.
Within the implementation of English family law, what accommodation should be made for the different cultural, religious and other understandings of fairness across Europe and the rest of the world? If we will not have applicable law, how can we accommodate demands for different outcomes based on different fairness? In doing so, how much will England create a multicultural family law fairness?
Within divorce, how do we accommodate the vast range from non fault, speedy divorces to fault based, slow and sometimes judgemental divorces?
Within financial provision, how do we accommodate the maintenance for life with the automatically imposed clean break, the redistribution of marital assets to provide for the vulnerable party with the automatic division based on an agreement made perhaps decades ago, the piercing of corporate veils to ascertain financial realities with the acceptance of traditional asset holdings, the colossal divorce settlements with the almost insignificant “equitable” rearrangements?
Within children arrangements, how do we accommodate shared parenting with minimal contact, judicial direct listening to a child with second-hand reporting, the freedom to relocate with xenophobic refusals?
Within the family court process, how do we accommodate the inquisitorial with the accusatorial, the mediator and the notary,the litigant in person and the party paying a million euros of costs, the fast with the slow, the publicly open with the closed chambers?
Within family law itself, how do we accommodate those who believe their personal law should be applied irrespective of the national law, those from the faith communities with those from the fiercely secular?
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This paper is not an academic treatise. It is by a practising solicitor, dual qualified in England and Australia, a mediator and part-time family court judge in London, who specialises in international family law work.
It takes a practical and pragmatic consideration rather than a purely jurisprudential approach.
Finding a European sense of fairness
Only a decade or so ago, very dramatic differences existed across Europe in family law. Neighbouring countries were almost strangers to each other. Whereas national corporate and commercial laws had increasingly become similar because of the demands of multinational companies and cross-border contracts, family law was struggling to catch up. It still remained very parochial, with very little sharing and cross-border harmonisation.
This past decade has seen incredible changes. There are still differences across Europe, such as to make forum shopping a worthwhile expedition. Nevertheless in certain ways the differences are getting
less. The following has occurred across Europe (and some other westernised jurisdictions):
• most jurisdictions have non fault divorce either solely or as one of many grounds
• the jurisdiction for a divorce across Europe is now identical following Brussels II
• with a few exceptions, the timetable for a divorce is now quite quick
• in most jurisdictions, there is little difficulty in litigants acting in person in relation to the divorce itself
• final divorce orders are recognised automatically across Europe
• the best interests of children, alternatively the welfare of children, are the paramount consideration in most jurisdictions on children issues
• there is a unified child abduction law, and which across Europe is stronger than the Hague convention,
• contact orders are automatically recognised across Europe
• courts must listen to the voice of the child
• financial outcomes start from an equal division of capital where discretion exists
• within a matter of years, most westernised jurisdictions introduced pension sharing provisions
• automatic enforcement of maintenance orders by consent across Europe
• the European judicial network is starting to create a network of family law judges There are many others. However against this commendable list, many big differences and problems exist. The following can only be a sample
• a few jurisdictions are exceedingly slow in divorce matters, and other family law proceedings, and require very long periods of separation
• the first to issue principle of Brussels II has given rise to intense, hostile, tactical and decidedly non-family friendly, rushes to court
• most European countries operate applicable law yet there is no harmony of the criteria for which law applies in which circumstances
• some European countries operate local law with practitioners adamantly resistant to the introduction of applicable law
• there are major differences on the understanding of what it means to listen to the child
• there is no common understanding, unity or convention regarding child relocation
• some countries are not operating the child abduction provisions in Brussels II
• there is a dramatic difference across Europe in the operation of maintenance and property regimes; for some countries all financial issues are treated alike and in other countries the two are totally separate with separate laws and separate lawyers
• some countries allow only minimal redistribution of capital assets to provide compensation for marital commitments or sharing of marital gains
• some countries have binding financial agreements including pre-marriage agreements, including in circumstances of no independent separate legal advice, financial disclosure and even in circumstances of duress or misrepresentation
• final financial family court orders are not automatically enforceable across Europe
• some jurisdictions allow no or minimal spousal maintenance terms whereas others still make orders for lifelong maintenance
• there is no network of family lawyers across Europe to enable lawyers easily to find other lawyers with whom to work together on cross-border cases
• cross-border mediation and other ADR is not happening
• there are even greater differences and problems concerning cohabitation and same sex relationships As stated, this list is only a sample. The European Commission has been entrusted by the Maastricht Treaty to produce as harmonious a family law judicial system across Europe as possible by the year
2011. Some progress has been made. Some excellent proposals have fallen at the hurdle of applicable law. Some introduced law has been roundly condemned by practitioners and others such as the first to issue under Brussels II. The requirement of unanimity across the EU has inevitably the danger of blandness and lack of vigour.
Yet outside of family law itself, European countries are witnessing an incredible movement of peoples, a corresponding number of cross-border families and many national families with property in other parts of Europe. This significant movement over the past decade has accelerated with the accession states. Moreover as a consequence of events elsewhere in the world, many European countries have experienced a considerable influx of peoples from outside of Europe.
Family law is probably the area of national law most closely linked to the history, religion, culture and ethics of a nation and its people. This is the primary reason why family law has been slow to harmonise and why those seeking to harmonise have had a frustrating experience. It is right that family law change should take account of these very traditional deep seated foundations. Equally however nations are changing. Nations are having to reassess who they are and what they are, given that their demographic structure is changing. Family relationships are central to this demographic change.
With many in each jurisdiction looking not only to their jurisdiction of residence but also to their jurisdiction of nationality or with their original home jurisdiction, there is a need for an analysis of the way forward within Europe to ascertain what is fair outcomes for European families, both nationals within a nation and international families.
The experience of the past decade is that satisfactory harmonisation has not come from imposed specific laws but from satisfactory shared working, debate, common understandings and narrowing of issues between lawyers, judges, family policy advisers, academics and politicians. These have concentrated on more general aspects rather than the specifics of particular laws or legislation. It is submitted that this is the better way forward and that from these shared working arrangements and debates will come, and probably come quite quickly given the demands and needs of international families, some harmonised laws themselves.
So what are the common themes and component elements of fairness found generally across Europe and which should inform thinking about a sense of fairness and justice in family law across Europe. Set out below are some such features. After examining each, the possible implications are set out.
Supporting the Institute of marriage Despite the high incidence of cohabitation across Europe, a significant number of couples, especially couples with children, are in a marital relationship or aspire to a marital relationship. Studies indicate longer relationships, better child upbringing, better health and wealth and many other benefits from marriage. Supporting the institute of marriage does not mean deprecating or detracting from entitlements in cohabitation or same-sex relationships. Although at times and in some places it is very unfashionable to be seen supporting marriage, there is much public consensus towards it across Europe.
In England, the Family Law Act 1996 which would have introduced, if implemented, no-fault divorce, set out four general principals of the Act of which the first was “section 1(a) That the institution of marriage is to be supported” Although few countries have a specific policy of checking legislation against the impact on marriage and family life, this informal policy occurs in many other ways including across the media. Support for the institution of marriage is at the foundation of many of the religious and ethical bases in many countries.
It will command support when looking at family law fairness
• opportunity should be given within the process of divorce and family law generally to encourage attempts to save saveable marriages. See below
• divorce should not be so easy, including as to timetable of separation, as to encourage less respect for marriage and marriage responsibilities. However and probably more important given existing trends, divorce should not be so difficult, again including timetable of separation but also timetable from beginning to final divorce order and proof of any fault grounds, as to encourage cohabitation before the ending of marital ties and responsibilities
• the law should not encourage cohabitation as distinct from marriage, for example in the termination of spousal maintenance on remarriage yet the continuation of spousal maintenance on cohabitation. This therefore directly encourages cohabitation
• there should not be more advantageous tax, welfare benefit, succession, pension and other benefits for those who are cohabiting as distinct from those who are married
• short term spousal maintenance orders, as increasingly prevailing across northern Europe, sometimes do not properly reflect and compensate commitments and sacrifices made for and during the marriage
Saving saveable marriages
With the cost of marriage breakdown being so high, everything possible should be done to save saveable marriages. This cost is first an emotional and relationship cost, for the couple concerned, the children, other extended family members, those close to the family personally, within the community or through employment. The second cost is in loss of employment through time off, sickness and ill-health and other direct financial costs from the marital breakdown. The third and even wider cost is that to society of widespread divorce including significantly higher welfare benefits, reduced employment productivity, physical and mental ill-health, antisocial behaviour of children and young adults affected by divorce, differential in housing needs and many other aspects.
The cost to a country of high marriage breakdown cannot be underestimated.