There's no case like Rome

Picture the scene. March 2008, and you’re in Lochmaddy Sheriff Court for a divorce proof. You’ve cited your witnesses, booked your shorthand writer, copied your authorities, even lodged all your productions on time… you’ve read Cunningham, Wallis, even Coyle. How bad can it be?

Thankfully not as bad as it looked like it might be a couple of months ago. At that stage the UK had indicated that we wanted to take part in the adoption of what has become known as Rome III – to give it its proper title, “The green paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition”, SEC(2006)952, which is due to come into force on 1 March 2008.

At the end of October however the government decided that we would exercise our right not to opt in at this stage (we may still in the future). We need to hope and pray that our government doesn’t change its mind.

Rome III (which is actually a regulation at the green paper stage) has been in contemplation for some time, long before Brussels II-bis came into force on 1 March 2005. Family lawyers will know that, in simple terms, Brussels II-bis regulates jurisdiction in divorce cases and some child cases, and deals with recognition of orders in child cases. It is not confined to cases that have a cross-border element. As a regulation with direct effect it changes our domestic law too. As far as jurisdiction is concerned, it focuses on the concept of habitual residence. It means that there is now a degree of harmonisation across the member states (other than Denmark, which opted out) in relation to the basic jurisdictional rules. Rome III was intended to go further and to move towards more fundamental harmonisation.

When Rome III was published we were told that its objective was to deliver “greater legal certainty and simplification”. The theory was that greater legal certainty depended on there being harmonised rules to determine the law applicable to the distribution of the assets of married and unmarried couples in international situations. We were told that the aim was not to harmonise the rules of substantive law in the individual member states but rather to harmonise the applicable rules of international private law. The thought was that this would then ensure a degree of predictability.

At the moment there is huge divergence in the legal traditions of the 25 member states. We have a state which does not recognise divorce (Malta), to a state where no ground of divorce at all is required (Sweden). We have states where conduct is not usually relevant in determining financial provision, like Scotland, and states where conduct can be, and is, taken into account, like Austria. Given the variety of traditions it can be understood why it was thought that an attempt at harmonisation would be a good thing. The question is whether Rome III would actually deliver.

To try to address the differences in the substantive laws of the member states, the green paper attempts to provide a set of rules to be used to determine which country’s law would be used in any given case. The aim is that the law of the place where the couple had their closest connection should take precedence. There is also provision for the couple to choose, within limits, which law should determine their case. The idea is that there will be less of a rush to raise proceedings to make sure that you are “first past the post” to secure jurisdiction (as happens under Brussels II-bis).

The difficulty with Rome III is the way it seeks to harmonise. The green paper as currently drafted introduces what is called an “applicable law” regime, a regime that is familiar to many of the continental states but unfamiliar to us. Our tradition is generally to apply the lex fori, which means that we apply our own domestic law to cases properly before our courts, irrespective of the nationality, domicile or habitual residence of the parties to the action. The “applicable law” tradition of states like France, Germany and Spain involves the court applying the law of the state that they see as most applicable to the parties.

If we do end up opting in, therefore, consider the scene back in Lochmaddy. Not only have you booked your shorthand writer, copied your authorities, and lodged your productions on time: you’ve also brought your expert witness to enable you to lead evidence on Polish law and prepared your submissions on the Polish law of financial provision. You’ll also, obviously, be looking forward to advising your client on whether the sheriff erred in law when you get her decision. Who said family law isn’t fun?

    Rachael Kelsey and Caroline Murphy, Pagan Osborne Family team

ROME III GREEN PAPER: THE OBJECTIVE

The introduction describes the paper as “a wide-ranging consultation exercise on the legal questions which arise in an international context as regards matrimonial property regimes and the property consequences of other forms of union. It presents the various aspects of the matter on which there is apparent need for the adoption of common legislative rules”.