So finally the big week is here. On Thursday we will all have a once-in-a-generation opportunity to vote on a topic that has been a source of lingering tension and rumbling rows in British politics for decades: our membership of the European Union.
It is an odd, uncertain time, with campaigners handing out leaflets on street corners, politicians predicting doom and gloom if the vote does not go their way, and media pundits trying to hack their way through dense thickets of claim and counterclaim. The feverish atmosphere was considerably heightened by the brutal murder of Labour MP Jo Cox last week, just 20 minutes away from my home city of Leeds.
Whatever way you plan to cast your vote – and I, personally, am in the ‘remain’ camp – I suspect many of us on Friday will at least be glad it’s all over, even if we didn’t get the result we wanted.
In this video I take a look at one of many ways in which the English legal system is entwined with that of the EU. Currently, at least, as EU citizens we have the right to choose the jurisdiction in which we would like to litigate family disputes, in particular divorce – subject, of course, to those ever-present terms and conditions. But the two parties involved may prefer different jurisdictions because those systems seem to favour their own interests. This is a very common situation amongst expatriate couples whose marriages break down while they are living abroad, and when it does occur, EU law requires a quite literal race to the finishing line!
And now the ‘leave’ and ‘remain’ camps in the EU referendum are engaged in their own race – and the finishing line is just up ahead.
After I left university, I went to work as a law lecturer at a university in France. I was trying to teach French students in not very good French, probably more English than French, about the general principles of English civil law. They were astonished to find out that we didn’t have a civil code as they have but we have what we call an English common law and in the most, judge-made law. Acts of Parliament are interpreted by judges and they order accordingly. In France, it is very different, they have certainty and they have the civil code. When I left France, I left there thinking a foreign country with a foreign language, very different culture, very different food; nothing at all in common with me going back to Yorkshire in England. But times have moved on and now we are full blown members of the EU. There are 28 member states and there is EU law which regulate family law across the whole of those member states. In divorce proceedings for example, the law, which is called Brussels II, that is a very short name for an EU regulation, it regulates who can apply to the court in the member states. You have got to qualify and you can qualify on one of seven grounds which all relate to residence, nationality, and in the case of us in England, domicile which is a concept of real connection to the country or where we were born. If you come within one of these seven grounds you can choose which EU country you want to issue proceedings in. You can choose, for examples, to issue in England if you’re English or France if you’re resident in France. Then comes a rather bizarre race because wherever you issue first is the country which will then have its own courts apply its own law.
What does that mean?
Supposing you have got an English woman and a French man and they both decide to issue in their own country. Whoever gets there first wins the race and that country, that court, that law will apply. It makes an enormous difference because in England, we recognise spousal maintenance as a remedy, in France, they don’t. So a woman who needs maintenance really has to think hard about where she wants to issue proceedings and obviously England would be the first choice. A man who is wealthy, who doesn’t particularly want to disclose all of his assets, who wants to drag out proceedings, who really does not want to pay maintenance probably isn’t going to be attracted by England as a court. So a wealthier party can plan a divorce by moving to the relevant country where he or she thinks they will be best suited in the divorce. Of course, this all seems very unfair.
What is the alternative?
If we were not regulated by the EU then something called forum conveniens would apply and that means that the court which has the most connection to the case. If you were talking about one party who lives in England, one party who lives in another country, the court would think well which overall country is best suited to deal with this case. In our firm, we have had cases where the EU isn’t involved and we have scraped home with the English court but by the skin of our teeth in what has been a very, very finely tuned decision.
What are the overall advantages or disadvantages of either system?
I think, as in family law generally, you are always going to open a system to criticism. There isn’t one single answer; there isn’t one amazing benefit and one detriment. I think all systems have their own faults but come June 25th we will all find out what way we are going and which law is likely to continue to apply or not, as the case may be.