I recently attended a useful workshop in Vilnius, Lithuania, run by the Academy of European Law (AEL). The AEL promotes the understanding of EU law and networking for family law practitioners. The workshop was hard work but very rewarding.
The conference language was English, but the attendees came from several countries and included an Irish solicitor and professor, a German judge, an Italian professor, and two English solicitors, together with several academics and practitioners from Vilnius itself.
The workshop format worked very well. After a lecture on an individual topic, the participants broke up into smaller groups to work through a case study. We began with a look at legal aid—in the EU it is mandatory for a country to have legal aid available, unless its laws and processes are adapted to be easily used—some of the attendees shook their heads at this point. We also looked at how to refer a question to the European Court of Justice (ECJ) for a preliminary ruling. One problem is that the ECJ only allows for 20 minutes of advocacy, if an oral hearing is allowed at all, so the question to be submitted must be drafted clearly (as must the answer you want which must be submitted as well) but not so clearly that the court will decide without further submissions.
As a case study we looked at the movements of a couple who married near Lake Constance. As you may know, that lake is at the intersection of three national boundaries (Austria, Germany and Switzerland). Austria and Germany are both in the EU, but Switzerland is not. With various permutations (the parties being habitually resident in one or other country, being nationals of one or other country, being domiciled in one or other country), we put into practice what we had heard about. It was all rather difficult. Members of the group worked through the guides in the excellent printed material, but frequently disagreed as to the outcome.
It should be remembered that for the purposes of Brussels II bis (ie which governs jurisdiction in EU divorce) Denmark is the only member state that has opted out; there was quite a bit of concern as to which bits of the relevant law apply in England and Wales. This is clearly a jurisdiction of interest to our Lithuanian colleagues. 48% of all emigrants from Lithuania go to the United Kingdom (2012, The Baltic Course). While our divorce law does not recognise jurisdiction based on nationality, the idea of acquiring habitual residence after 24 hours (per Marinos v Marinos [2007] EWHC 2047 (Fam), [2008] 2 FCR 47) brought gasps of incredulity from the room. Habitual residence is a very elastic concept; we heard about a case where couples had lived abroad for some four years but were still deemed to be living in Lithuania for the purposes of divorce.
After our work on divorce jurisdiction, we learned about the application of foreign law in a cross-border case, for example, while Rome III tells us that a country can refuse to apply a foreign law if it is inconsistent with public order (so eg Lithuania will not enforce an interest provision on a debt if the interest rate is deemed too high), it is clearly exceptional for public policy to determine enforceability. Much more commonly the courts will enforce another country’s judgment.
Finally we turned to the delights of the EU Maintenance Regulation. This covers both spousal and child (up to the age of 21) support. The general principle that decisions of a competent court in one EU member state shall not be challenged by a court in another is welcome and sensible. If there is doubt, there are special rules favouring creditors in cases of parental support of children. The central authority will deal with much of the legwork. As a reflection of the role the State takes in supporting families (paternity leave, subsidised nurseries etc) we were not surprised to hear that an exception to the usual location of the central authority in a country being the Ministry of Justice is Sweden where it is in the Social Insurance Agency.
These workshops are a really good way to get your brain working on some complex legislation, while meeting practitioners in other jurisdictions, finding much in common, and more to wonder at, in the way we operate our laws.
Hazel Wright
Hunters
020 7412 0050
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