Last month saw the arrival of new EU divorce rules – Brussels 2 – which, according to many lawyers, could end up promoting break-ups rather than reconciliation.
The new law sets out the basis for the jurisdiction in which a divorce will take place. According to Withers family law partner Mark Harper, the main principal is habitual residence.
Previously, a party in a divorce was able to rely on domicile. “If you were expats living in Greece or Singapore and hadn't lived in England for 20 years, you could still get a divorce here based on your domicile,” he says. Now, both parties must have lived in the UK for at least six months.
In addition, Brussels 2 introduces a strict “first in time” rule, whereby whoever sues for divorce first has the right to determine where the case is heard. Lawyers fear that this will drive people into making reckless decisions.
“I wonder whether the Government has fully understood what the implications are,” says Rosemary Carter, chairwoman of the Solicitors Family Law Association (SFLA) and partner at London firm Barnett Simpson. “I can see it working quite a major injustice in some cases.”
The party which acts first will be in the driving seat. There are great differences in the way settlements are made throughout the Continent, and so it makes sense for parties to select sympathetic jurisdictions. For example, in most European countries the system is based on “community of property”, where assets acquired during a marriage are split equally. In Greece, parties are not allowed to make claims against assets in another's name unless they have contributed to the increase in the value.
Carter believes that the new rules might mean that people will be so concerned “to attempt to stack the cards” in their own favour, that they may very well jump in without considering the consequences. She thinks that time spent in initial negotiations would be lost.
Harper says: “The aim of trying to harmonise family law within the European Union must be right, but the problem is that there are going to be some people who suffer severe hardship as a result of those changes.”