It is hard to escape the conclusion that we have introduced "quickie" divorces for those able to afford and organise them, writes Geoffrey Shannon.
Last week the Irish High Court ruled on the implications of the Brussels II regulation in a case that may have significant implications for those contemplating divorce. The case is likely to prompt parties to litigate earlier and illustrates the practical effect of a regulation which came into force on March 1st, 2001.
This case concerned a French couple who married in France in 1978 and who moved to Ireland in 1988. The marriage broke down in 2002. Shortly thereafter, in November 2002, the husband initiated divorce proceedings. By this time the wife had returned to France while the husband remained in Ireland.
In December 2002, the wife instituted proceedings in Ireland. Further proceedings were brought in October 2003 and January 2004. The wife challenged, among other things, the constitutionality of the Brussels II regulation and contended that only the Irish court could reorder assets within the State.
Mr Justice O'Higgins declined the wife's application that the case should be heard in Ireland. He noted that under the Brussels II regulation, the court to which the application is first brought must hear the case. As the French court was the court to which this case was first brought, it had the right to hear the case and determine the issues.
In summary, the Brussels II regulation sets out rules for determining jurisdiction (ie venue) in family law disputes within the EU and requires courts of member states to recognise and enforce family law judgments in other member states. The regulation applies in civil proceedings relating to divorce, legal separation or marriage annulment.
The Brussels II regulation is potentially applicable where one of the parties is habitually resident in a member state (ie lived there for 12 months) or is a national of or domiciled (in the Irish sense) in such a state. Under Irish divorce law, the court will only grant a divorce where the spouses have lived apart for at least four years during the previous five years.
Ireland had some particular concerns that the original Brussels II Convention might be used to circumvent our rigid divorce rules, by allowing parties resident here to slip through and get a divorce elsewhere.
As a compromise a declaration was annexed to the original convention whereby Irish courts could refuse recognition to a judgment if such recognition would be incompatible with our Constitution.
John O'Donoghue, the minister for justice at the time, signed the Brussels II Convention on May 28th, 1998. On May 27th, 1999, however, it was decided to transform the convention into a regulation. The provisions of a regulation are directly and uniformly applicable in all the participating member states without much delay on a specified date. On March 27th, 2000, Ireland opted in to this metamorphosis from convention to regulation.
The Irish position was clearly undermined by the decision to convert the Brussels II Convention into a directly applicable regulation. Significantly, there was no place for the previously referred to declaration in the uniform regulation.
Although it was agreed Ireland could read the terms of the declaration into the minutes of the council meeting, this has little or no practical legal effect. The potential for circumventing Irish divorce law can be illustrated by the case of a couple living in Dublin who obtain a divorce in, for example, Northern Ireland, based on fraud. Such a divorce has to be recognised in Ireland, even where the fraud can later be shown.
Under the Brussels II regulation, when a party applies to a court in a member state for a divorce, it is not open to that court to deny a hearing on the grounds that a court of another member state would be more appropriate.
Where the courts of more than one member state can hear a divorce case, the court in the country where proceedings were first started must hear the case. This obviously makes speed of the essence in such applications. The danger then is that the parties to a transnational marital breakdown will be lured into a "race" to see who can get to court first.
The European Commission launched a Green Paper on applicable law and jurisdiction in divorce matters in March of this year. It acknowledges that the rule on the "first come first served principle" may induce the parties in "international" divorces into a "rush to court". The Green Paper suggests a solution to this problem.
The current Brussels II system rewards the party who litigates earlier. This militates against the concentrated efforts over many years by all involved in the family law system to promote the merits of mediation, negotiation and settlement.
The Brussels II regime has undoubtedly encouraged divorce planning and "forum shopping" (which is choosing a jurisdiction that suits a particular claim). This approach facilitates the "quickie divorce" syndrome of finding a country to grant a divorce, when other countries might not, that must be recognised elsewhere.
Brussels II is front-loaded. This makes it potentially applicable in every case with an international connection. In such cases, the family law solicitor has now the unenviable task of advising the client seeking a divorce to consider alternative dispute resolution while warning the client if he delays in instituting divorce proceedings the other spouse may secure exclusive jurisdiction in one of the member states.
It is hard to escape the conclusion we have introduced "quickie" divorces for those able to reside abroad for a year. The fear is that Brussels II will effectively lead to the creation of a two-tier system of divorce in Ireland between those who are able to go North or abroad, and those who will have to resign themselves to waiting it out here.
Family law in Ireland is still in a state of rapid change. Last week's High Court decision shows Irish family law is not resistant to the reception of foreign law. International relationships do not know of frontiers. The increasing free movement of persons has resulted in an almost identical increase of cross-border family relations.
Family ties increasingly stretch across one or more jurisdictions. Millions of migrants, including workers and their families, moving within the EU are confronted with different family laws. A different family law may affect free movement within the EU.
In this regard, the EU Commissioner for Justice, Freedom and Security, Franco Frattini, recently stated: "The right of freedom of movement for individuals is a basic right that must be guaranteed irrespective of the fact that some member states have or do not have legal rules regarding same-sex couples. That is an obvious principle."
Geoffrey Shannon is a solicitor and author of the recently published Child Law (Thomson Round Hall, 2005). He is the Irish expert on the Commission on European Family Law and is the editor of the Irish Journal of Family Law