New EU regulations may make the settlement of family law disputes involving nationals of more than one European state more difficult, according to a Supreme Court judge.
Ms Justice McGuinness made her comments following papers at a conference of the Family Lawyers' Association in Dublin on Saturday. Dr Gerard Hogan SC and Mr David Truex, from the International Family Law Chambers in London, were speaking about the implications of "Brussels II".
This is a regulation of the Council of the EU, due to come into effect on March 1st. It concerns the jurisdiction of courts within the EU and the recognition and enforcement of judgments in matrimonial matters and matters relating to children.
It does not relate to financial proceedings, according to Mr Truex, but it may have an impact on them.
He said the fundamental point of this new regulation was that where a party issued matrimonial proceedings, the court of the state in which proceedings were first issued would have exclusive jurisdiction.
"Any proceedings for the same relief subsequently issued in another member-state must be stayed. No discretion is permitted. So we are faced with a situation where Irish-domiciled parties must wait for four years' separation to divorce at home, but can move to England for a year and secure the right to have an English divorce recognised in Ireland," he said.
Dr Hogan said this could force parties to race to the courts of their respective states, in the attempt to secure the jurisdiction they thought would be most advantageous.
Ms Justice McGuinness said there was great concern in Britain about this, which was justified. "The most damaging thing about this is that good family lawyers try to settle between their clients," she said.
"Now it looks as though they'll be pushed into a situation in any international proceedings where they'll have to rush the proceedings into court. That's very adversarial. As soon as you serve proceedings relations between the parties get 40 times worse."
The regulation does have a built-in five-year review period, and Dr Hogan said if there was a general view that it was not an appropriate mechanism for family law it might be reviewed.
