Posted by: Clarinette | November 30, 2011

Abusive Jurisdiction or Abuse of Jurisdiction ?

Sometimes a law is just on its face and unjust in its application.‘ MARTIN LUTHER KING

From my understanding, in our modern societies, the idea of women’s emancipation seemed to be widely accepted. More and more women achieve high education. Most statistics show girls have actually better academics results than boys.

This is too sexist, you are right. Not all women are same. They are good and bad students in each sex. Good and bad men and women.

What the general consensus is, is that today, both sex should enjoy equal rights?

Statistics show a serious raise in the numbers of divorce. We used to say one in two couple will split within 10 years of marriage, today, 10 years, are long life for couples.

So, now that we know that divorce has become more than just a sad fatality, what have we done to make it less painful ?

In a divorce, both couple can suffer. It is undeniably a failure when things fell apart.

Outside the couple, there should be one major consideration in a divorce, that is, protecting the children’s wellbeing. Am I saying that because I am a mother? It could be. It is hard for me to imagine what is inside the brain of some fathers. Not all have grown up with the ‘education’ of family life with all the responsibilities as well as the joy of building and maintaining family bounds.

What compensation our society has to offer to the parent that has devoted her/his time and life and carrier to look after the children?

How we, as a society, as individuals, as mothers and fathers, as law makers, are we dealing with the consequences of a separation ?

Have a look at this article published by the Guardian ‘The Mythe of the kept women‘ by Emine Saner in September 2009.

The article describes clearly the way the European Convention, Brussels-II, enacted to simplify divorce proceedings within the EU, has been used by large law firms, specialised on International Family Law, to generate big revenues and legal battles.

It is clearly exposed how the spirit of the European Convention is distorted to give maximum chance to the wealthiest spouse to rush against time to file divorce in a country giving the least protection to the non working, and therefore weakest spouse.

The article mentions :

“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 is actually even more than that. You can lodge a divorce petition in a country where you don’t even live neither yourself, your kids, nor your spouse, simply based on your nationality. And this nationality can be the one you acquired by marriage!!

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 emptying all joint bank accounts in order to prevent the partner to even be able to hire a lawyer. No lawyer, no representation, a precarious situation where often the mother, as it is the sad reality, would be stuck with her children in lack of fair trial. This is a growing strategy, commonly called Eurostar Divorce or forum shopping.

Thanks god, not every man goes down that path. Many have the decency to understand that the end of their marital relationships doesn’t mean the end of loyalty. It is important to understand why laws have been enacted and why the wife who has given up carrier to follow her husband has the right to maintain her previous level of life. Of course, she lives with the children, These kids are innocent in this separation. They do get harmed inevitably. What they need most of all is to find a certain stability. They can’t cope with a divorce if it’s combined with moving house, school, etc… It is fair to recognise the work of these women for their contribution not only to their families but also to the society.

They are more and more international families living across Europe and facing divorce following a long period of marriage. What is it done to ensure recognition for the great commitment of the wives for supporting their husband’s carrier and raising children? The provision for needs ordered by national courts are only adequate with local standards.

Some European countries have better dealt with supporting mothers to keep a professional activity. Some other are culturally much more resiliant. Germen for instance tend to have a more controversial view of working mothers they call ‘Rubenmutter’. In England, the school system often expect the mothers to be at home. It’s a very competitive system. school days are shorter. Of course it all depends on which part of the country. Somehow, following that logic, courts will be more or less generous with the non working spouse with children according to her chances to find a job.

When partners are encouraged to do ‘forum shopping’, this balance is completely destroyed. This is where you come to the situation of a high profile banker, leaving wife and family in the UK, filing in France, a forum with no attach, for the single reason of paying amenities in Euros, under the French standard of life, to a wife 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 Institutions.

And no, this is not a hypothetical case.

Am I wrong to be chocked by the raising number of spouses let down by this system? Don’t you think Courts should refuse to apply regulations where the choice of jurisdiction is simply an abuse of Law? How to justify a divorce case in a foreign country where neither party is resident and where the defendant cannot have legal assistance?

Read:

– 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

Abus de droit is a French term meaning, “abuse of right”. 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.

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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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.

BII “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 BII forum dispute without securing jurisdiction by issuing first.
2- But it is even worse. Who arguably would now 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? BII 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 obtaining advice as to which is the best jurisdiction requires good lawyer contacts in other countries and an ability to pay for that advice (and invariably pay upfront and quickly). In short BII favours the wealthier spouse with easy access to specialist (often expensive) lawyers with international experience. The less wealthy spouse suffers badly. The spouse requiring public funding is totally vulnerable.

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

READ Other expat spouses views:
Gaby ARound the World


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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