The European Union's top Court, the CJEU, has again been criticised for a lack of predictability in how it says jurisdiction should be determined under Article 7(2) of Brussels Ia. The problem is one which English family lawyers are now rapidly coming to terms with following Brexit in divorce jurisdiction disputes with our largest neighbour, the EU, the jurisdiction with which most international cases in the English family Courts are probably concerned.
How will the English family Court now determine divorce jurisdiction disputes with the EU? By reference to the decades-old principle of "forum non conveniens" (alternatively called "forum conveniens"), which essentially says that the Court should determine which jurisdiction is the most appropriate to deal with the divorce (although in practice it is the financial consequences of the divorce that are likely to feature most heavily in the Court's and the parties' considerations). Some explain the principle slightly differently, describing the Court's task as deciding which jurisdiction is most closely connected to the parties/the dispute, although that may not always be the case.
Whilst it is true that the English family Court has previously applied the forum non-conveniens principle to divorce jurisdiction disputes with non-EU countries, they seem to have been much fewer and farther between in the last few decades than disputes with EU countries which were governed with the far more predictable and certain "first past the post" test in Brussels IIbis. This is perhaps reflected in the now dusty looking authorities on forum non-conveniens, cases such as de Dampierre from 1988 and Butler No 2 from 1997.
Rather than the simple EU test of "who filed and served first", with forum non-conveniens we now have to consider all relevant factors which appear pertinent to the over-arching question of which Court appears most appropriate to hear the dispute. According to Butler, the most relevant factors are the origins of the parties; the history of their relationship; their post-separation conduct; the consequences of granting or refusing a stay of the English proceedings (in order to allow the seemingly more convenient jurisdiction the opportunity to resolve the dispute) and how readily the dispute may be dealt with by the parties and the Court in one jurisdiction as opposed to the other. It does not take long to realise how easily debating such matters may rapidly lead to pages and pages of witness statements, days of Court testimony and eye-watering sums in legal costs, which the English family Court can hardly afford to cope with more of at present.
The matter is complicated nowadays by the increasing prevalence of pre- and post-nuptial agreements, many of which try to commit the parties to litigating divorce in one jurisdiction or another, and/or to apply its law. Such a choice of law may help swing a forum non-conveniens decision in favour of the chosen jurisdiction over England, as happened in favour of Switzerland in the High Court in the Mantegazza case of 2017. However, family lawyers will be mindful of the extensive debates which can easily surround nuptial agreements and the circumstances of their making. Importing those debates into the equally knotty forum non-conveniens analysis is by no means a guarantee of making it simpler.
On the other hand, family lawyers and above all their clients may welcome the breathing space potentially afforded by forum non-conveniens when considering if, how and when to approach the sensitive and life-changing decision of separation and divorce. Family lawyers will no longer feel compelled to advise that there is no other option but to issue proceedings immediately and without notice in order to obtain the jurisdiction of their preference for the financial consequences. This may lead to less acrimonious disputes and more time to resolve the most sensitive issues such as arrangements for the parties' children. However, whether this proves to be a benefit remains to be seen, for in the England-EU context it seems unlikely that EU states will accept an English decision that England is the more appropriate forum, especially if divorce proceedings were issued in the EU state first. First past the post is therefore likely to remain important and possibly decisive in future England-EU disputes.
More generally, it is a pity that the 5 years (and arguably still counting) Brexit process has not yet been used as an opportunity for wide consultation and Parliamentary debate on how divorce jurisdiction disputes may be handled better in the future. With creative thinking it may be possible to create a new test which combines greater certainty and predictability for the parties, whilst at the same time affording them the breathing space most of them dearly want or need.