Posted by: Clarinette | November 30, 2011

Abusive Jurisdiction or Abuse of Jurisdiction ?

UPDATE in view of BREXIT :

Brexit will be a new challenge for the European / International Family Law. UK lawyers can’t wait to counter the French and German jurisdictions. English courts will be competent to examine a divorce proceeding even if another European jurisdiction has been involved.

Forum shopping has devastating consequences for children and families involved. It is unfair that a separation already sufficiently painful would suffer from unnecessary legal complications : foreign currencies, foreign legal system, foreign languages (necessary legal translations of documents , etc…),  Once the divorce is over the split of assets in foreign countries is another milestone.

A nightmare that too many couples who move around do not expect they will have to face. Expatriate children don’t live the worst life. Still the cultural diversities, the distance from close family and friends make family life more challenging. A European divorce where parties dont even live in the country of the jurisdiction is something anyone would want to avoid. But they are large family law firms who have been making big money out of forum shopping, usually at the expense of the wife, who has given up carrier to follow the husband’s carrier abroad.

Divorce Jurisdiction after Brexit : “An EU law working group, comprising 15 international family law experts, considers the basis on which couples should be able to engage the jurisdiction of the UK courts in order to divorce, following the UK’s departure from the European Union.

Brexit and Family Law Conference : “The withdrawal of the UK from the European Union will precipitate important change in the field of international family law. EU law has increasingly come to define key aspects of both jurisdiction and recognition & enforcement of judgments on divorce, maintenance, and disputes over children, including international child abduction, and provided new frameworks for cross-national cooperation.

David Hodson OBE, examines the impact of the UK decision to leave the EU on Family Law with specific reference to international families and EU laws with cross-border impact. UK International Family Lawyer : Brexit and International Family Law

The European family in crisis: the consequences of Brexit on English family law

Brexit risks ‘disruption and confusion’ in family law – Bar Council

Le « Brexit » menace le divorce à l’européenne

* * *

 

The major consideration in a divorce case should be to preserve the children’s wellbeing.

Along with the children’s interest, the parent that has given up carrier to look after the children deserves a right to survive the split.

In this article published by the Guardian by Emine Saner in September 2009, we have a glance of the  ‘The Mythe of the kept women‘ , the destiny of the forgotten spouses.

The article describes clearly the way the European Convention, Brussels-II, enacted to simplify divorce proceedings within the EU, has been actually misused to generate large revenues and legal battles. The Convention is distorted to give maximum chance to the wealthiest spouse who rushes against time to file divorce in a country giving the least protection to the non working, and therefore weakest spouse.

Under European regulations, you are able to lodge a divorce petition in one of the member states if you are a national of that country, domiciled there, or have been resident for six months.

It actually goes even further. A divorce petition can be lodged in a country where neither party nor their children actually live, a jurisdiction exclusively based thecommon nationality of the parties. And this nationality can even be the one acquired by marriage !! How? A French court of Appeal has decided an Australian citizen, French by marriage with a French citizen, who moved the family to settle in the UK for the sake of his carrier, could leave to start a new life outside the EU BUT initiate a divorce in France, country of common nationality of the spouses where neither party resides.

Practically, what does it mean?

It means, these wealthy spouses, are rushed to adopt their most favorable jurisdiction to file in, leaving behind family and children. The most ‘inhuman’ ones, would take care of not leaving any asset behind so that the partner could not even afford legal representation nor defence. A precarious situation where often the mother, as it is the sad reality, would be left with her children in lack of fair trial.

Eurostar Divorce or forum shopping means the jurisdiction that will rule the case, will judge based on a legal system that does not take account of the country where the defendant is based.

The French family law is based on the idea that it is for the best of everyone to cut clear financial dependence by allowing a lump sum called ‘Prestation Compensatoire’ to re-balance the situation of the one party who will financially suffer from the consequences of the divorce. The legal marital regime is ‘communaute de biens‘ in which all assets acquired during the mariage are equally charged. Therefore, there is no alimony after divorce. No rights to pension, etc… the judge will decide based on revenues and expenses of each spouse and the children’s needs, age of parties, carriers, and chances to rebuild a financial situation. That takes account of the fact that they the government offers many facilities for mothers who work, with garderies or crèches for the younger children, after school activities or holiday camps for the older ones. They are several governmental financial helps for single parents and children in education.

In Germany, the situation is different, it varies in different federations, culturally mums are expected to give up work whilst the children are younger.

In England, courts have traditionally been more understanding with the situation of mothers who have given up work to look after their children. On the other hand, there is no matrimonial regime, not as much help for children’s.

The provision for needs ordered by national courts are only adequate within the local standards and the national sets of legislation.

When spouses are encouraged to go ‘forum shopping’, this balance is totaly dismantled. This is how a wealthy husband, leaving wife and family in the UK, filing in France, a forum with no attach, to avoid paying amenities, will be only liable to contribute in Euros, under the French standard of life, to a wife and children living in the UK, left with an empty bank account, not even able to afford the trip to the court with young kids.

This is a typical Abuse of the European Legislations.

Abus de droit‘ or “abuse of right”of is a Civil law defence where a legal right is used exclusively to undermine the opponent’s rights.

Under abus de droit, a person may be liable for harm caused by doing something which s/he does not have a right to do. The following are the rights that are prohibited to use in an abusive manner:

1.A right that is principally intended to cause harm;

2.A right that is used without a legitimate interest in justifying judicial protection;

3.A right used in bad faith;

4.A right that is contrary to basic rules of morality or fairness.

Abuse of law is a criteria generally retained in tax law where the tax administration can invalidate a legal act if it is proven that the main aim has been tax avoidance.

Forum shopping should be considered and sanctioned under the prohibition of ‘Abuse of Law’. The spouses that follow their husband have no idea the risks of such decision.

Update 27/04/2012 :

UK, by Nick Clegg, is planning to create more day care for children allowing more mothers to go back to work. I read an interesting piece on the Huffington Post today by the blogger Nill Hill on the importance of the role of mothers on kid’s education. I remind, preliminarily, that child education and their well being should be the main preoccupation of any healthy society.

The Children’s benefits of a happy active mothers staying home are great. It is also true that kids need socialisation. When we were in France, I regularly took my kids to the ‘Maisons Vertes‘ as suggested by the child Psychanalyst, Francoise Dolto.

In any case, it should be a personal choice as every situation is unique.

When financial situation permits, and the social framework is offered, home staying mothers should be recognised for their work towards the education of their children as much as a carrier outside home.

The big question that Milli Hill forgets is, can every women afford to stop working, financially or carrier wise, should every mum stop working, carrier wise and on the view of the interest of the society?

My views developed here are based on the impact of such decision on the personal lives of the mothers giving up work and the lack of consideration of our societal system for home staying mothers. Wives, mothers, should not be confused with disposable tissues.

After all, the interest and happiness of kids is not divergent from the happiness of their mother with whom they often keep much closer relationships. We have not seen many mothers divorcing and forgetting about their children while I have personally seen many fathers rebuilding their lives after a separation and forgetting their kids. It is sad, but it seems that parenthood is a feeling that not every man has.

Brussels-II “first to issue secures jurisdiction” is certainly easy and simple to apply and immediately ends the substantial costs of discretionary forum litigation; some of the many appeals to the law reformers in

See extract from iFamilyLawGroup – THE INTERNATIONAL FAMILY LAW GROUP iGuides to family law and practice Brussels-II :

Brussels. But it has had major consequences in practice. As Europe still has very different financial outcomes between countries, there is a huge importance in securing jurisdiction in the most favourable jurisdiction to obtain the most favourable financial outcome.

Yet it simply involves issuing first. Seemingly the Euro bureaucrats did not realise the disadvantages. Four were immediately obvious and have proved so in practice.

1- No one should mediate (or propose or engage in any other Alternative Dispute Resolution) until they have first issued to secure jurisdiction. Then, what chance is there for successful mediation or other ADR if one party knows the other has taken unilateral and tactical steps to secure their interests in litigation? Many mediators give little prospect of successful outcomes in mediation after such an ominous and acrimonious start. It is good practice never to propose mediation or any other ADR in a potential BrusselsII forum dispute without securing jurisdiction by issuing first.

2- But it is even worse. Who arguably would suggest relationship counselling if to do so and admit the marriage was in difficulties might prompt and then precipitate the other spouse to issue first to their significant advantage? And having issued first and tactically, what chance is there for successful counselling? Brussels-II directly encourages and endorses the party who is making the break in the marriage, whom many in society would often consider at least the more responsible for bringing an end to the relationship and without giving a full chance to overcome relationship difficulties and save saveable marriages.

3- Agreements about jurisdiction, choice of law and location for any proceedings are irrelevant under Brussels-II. So pre-marriage agreements with jurisdiction clauses, choice of law regimes, even post separation agreements about preferred jurisdiction count for nothing. Private ordering in family matters is highly encouraged in many jurisdictions and favoured by many spouses. Yet Brussels-II simply ignores such agreements. Entering into a separation agreement is highly dangerous if another country’s courts might later deal with the case: it is good practice for the lawyer to issue immediately instead. Brussels-II does not even allow courts to transfer cases abroad consensually. Even the European Union proposes in its draft regulation known as Rome III that parties should be able to agree between themselves on the law to be applied in their case.

4- Finally the hiring of a competent lawyer from distance is in itself a challenge. Legal aid generally not covering such cases.

 

————-

– ‘Agbaje financial provision after a foreign divorce: The Supreme Court restores opportunity for international justice

READ Other expat spouses views:

Gaby ARound the World

Further reading:

– Harding, M. ‘The Harmonisation of Private Intenational Law in Europe: Taking the Character out of Family Law?‘ (2011) 7(1) Journal of Private International Law 203 , considers how the European legislation works in a domestic context in England and Ireland.

– ‘Resolving the Free Movement of Family: The Pressure of Mutual Trust in European Private International Family Law’ paper by Ruth Lamont given to the European Institute in Florence which, in part, considers the interpretation of Article 3 by the English courts.

– ‘The General Principle of the Prohibition of Abuse of Rights: A Critical Position on Its Role in a Codified European Contract Law’ by ANNEKATRIEN LENAERTS

– Prohibition of Abuse of Rights in the EU by Ana Bobie, University of Zagreh – Jean Monet Chair of European Public Law – July 2011

– Is the Prohibition of Abuse of Law a New General Principle of EU Law? This was the topic of a conference which took place in Oxford in October 2008 and now the subject of this recently released volume in the Studies of the Oxford Institute of European and Comparative Law.

– Choice of Court Clauses and Lis Pendens under Brussels I Regulation – Ekaterina Ivanova 2010 – UNIVERSITAT AUTÒNOMA DE BARCELONA

Facultat de Dret Departament de Dret Privat Programa de Doctorat d’Estudis Juridics Europeus Avançats

UNIVERSITÉ TOULOUSE I – SCIENCES SOCIALES

Equality before the law and the Rule of Law – preventing the Rule of the Majority, abuse of power and abuse of process.

Prohibition of Abuse of (Community) Law – The Creation of a New General Principle of EC Law Through Tax?

THE “ABUSE OF RIGHT” IN EU COMPANY LAW AND EU TAX LAW: A RE-READING OF THE ECJ CASE-LAW AND THE QUEST FOR A UNITARY NOTION By Luca Cerioni

Law Lecturer, Brunel University

Regulating jurisdiction: English courts discretion to stay proceedings curtailed

Forum Shopping: JKN v JCN post t Owusu v Jackson [2005] QB 801

– ‘Forum Non Conveniens in Continental Europe Christian G. Lang, LL.M. (NYU)

Prager Dreifuss, Attorneys at Law, Zurich, Switzerland (christian.lang@prager-dreifuss.com)’ The doctrine of forum non conveniens conveys discretionary power to courts to decline jurisdic- tion over a matter on the basis that there is a more suitable and appropriate forum available to the parties elsewhere.

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Responses

  1. Hoorah for common sense and a reality check! With the taking away of legal aid provision for many, there will be even more (mainly women) having to also self represent while husbands with the bank account in Switzerland pay for an expensive barrister. Yes there are rules to help redress the balance, but the fact remains that a bullying approach is made far too easy, and the word mediation or collaboration is drowned out as ‘the system’ is abused leaving the main carer at a serious practical and psychological disadvantage. The fact is that with the current family law system in the UK, it is still far too easy to behave badly. And the more that the system allows such abuse, the more likely women are to be led down adversarial routes when they do have funds available, as the whole culture becomes tainted, contaminating not only the lives of the couple concerned, but of their children.

  2. […] No divorce should be abusive. See my previous post ‘Abusive Jurisdiction or Abuse of Jurisdiction’ […]


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