At the IAML European chapter conference meeting in Seville, Spain, in March 2015 we had a very interesting lecture on Spanish family law. We were told there are specialist family courts in only the main regional cities: otherwise a family case will be conducted by a nonspecialist judge. Many judges have not previously practised as lawyers. There is a huge backlog of work with a serious financial underinvestment in the family (and civil) courts. Much work is undertaken still by paper with little use of technology. There is no accelerated procedure including in 1980 Hague Convention cases. Although there is a Spanish civil law, practice and legislation varies between Spanish regions especially in the default marital regimes.
However what a number of non-Spanish lawyers present found most worrying was the open admission of the very long delays. Many of us with cases involving Spain have experienced delays but I don’t think we knew how widespread nor so openly acknowledged. We had hoped we had seen isolated examples.
We were told that it can take 2 years and more to dissolve and end the marital community of property and to establish what are the assets. But this is only one part of the process. The second part is to split the assets between the parties which could take another 2 or 3 years. We were told that the whole process could even take as much as 7 years including appeals. This is all the more surprising because Spanish substantive law allows very quick divorces, known as divorce express and provided it is uncontested with no children or material assets.
Many countries around Europe including England and Wales have suffered from the austerity cuts arising from the GFC, with family justice systems often struggling with depleted budgets. But first instance resolution of financial matters from separation and divorce taking 5 years, perhaps even 7 years, is appalling. It’s bad of course for the Spanish parties involved but we are no longer just national. We have international families
Other cases have highlighted problems elsewhere in Europe. The very important European Court of Justice decision of Neulinger v Switzerland (application 41615/07) (2011) 1 FLR 122 only really arose because of incredible court based delays in dealing with a child abduction in 2005 which was finally decided by national courts in 2009. In S v S (Brussels II Revised: Arts 19.1 and 19.3: reference to CJEU) (2014) EWHC 3613 the English High Court expressed real concerns that the French judicial separation petition could stay on the record with no imperative to take any action whatsoever to progress the case for a three-year period and yet still gain priority under the Brussels Regulation. In another European Court of Justice decision, Gasser v MISAT (2005) QB 1 the CJEU held that even if the courts of the jurisdiction first seized with a case were subject to excessive procedural delays, this was no basis for the country second seized to proceed with the case. The Attorney General to the court had openly criticised the very long delays occurring in some justice systems in parts of Europe yet this had no bearing on the outcome.
A year or so ago my firm was involved in an Anglo Spanish case in which the husband had issued in Spain and he or his lawyers had taken steps to have it served on the wife in England through Central Authorities and other Spanish and EU based procedures. Six months later, the papers had not even left Spain to come to England for service when the wife, not knowing anything about any Spanish proceedings and still not having been served, issued in England and within a week or so served the husband in Spain and was then highly perplexed to find out that she was nevertheless second in time. Her time and legal costs in issuing in England were thoroughly wasted. Then a few more months later the Spanish divorce proceedings arrived in England and were then served on her. It had taken about nine months from issue in Spain to service in England, most of which had been spent in Spain from the Spanish court through the various processes to come to England for official service to take place.
This is not just a Spanish issue: it applies in a number of countries around Europe, including around the Mediterranean and Eastern European. One can understand countries where the period of separation required before there can be divorce is fairly long. Italy and the Republic of Ireland are, or at least were until recently, in this category. This is their national law decided democratically. It is where the practices, invariably the delays through the judicial and justice system, create excessive delays that difficulties are caused. Slow justice is not fair justice
But this is not just national problems for national lawyers. Europe is now a combined justice system in many ways. The first to issue criteria of the Brussels Regulation has directly limited the power to issue proceedings in our national courts if they have already been issued elsewhere very many months (or a few minutes) earlier. The many international families around Europe now make the problems in some family justice systems to be the problems in the entire European justice network.
It truly is a case that justice delayed or slow in one national system within the EU is justice denied internationally across the EU. Clients in some jurisdictions are directly suffering from long delays in a few countries. If it is the case that a modestly straightforward financial dispute on divorce in Spain may take six years or so to be resolved then this affects those in England (and elsewhere in the EU) who may be a party to that divorce, may have property tied up through that financial dispute or maybe close to the family and picking up the pieces during the many years of the process. Children suffer whilst their parents litigate. It’s not just the two parties themselves who are affected by family law disputes
What can and should be done?
Proactive countries can encourage judges and lawyers in other countries to have a more efficient system. The European judicial network has had some success in encouraging some countries to work more towards the six week return period in the 1980 Hague Convention when they were previously taking many months. But there is only a certain amount which can be diplomatically undertaken through judicial contacts.
The specialist family lawyers in these particular countries are invariably more frustrated than any others because they see the delays first hand and observe how other judicial systems function and resolve matters more quickly and efficiently. They do their best for their clients and in their cases but they are often relatively powerless.
The solution must lie with the EU. They have created cross-border laws dealing with family law matters, often with the best of intentions. They have made national justice systems dependent upon the justice systems of other EU member states. Nationals of one member state may have no redress to the courts of the other member state where the proceedings are occurring. They may have no opportunity to complain to politicians of their member state because they are before the courts of another member state and therefore have to abide by those procedures and their delays. The family laws introduced and being introduced by the EU can only work properly and effectively if the family justice systems also work properly and effectively. It is not working if there are excessive and bad delays. There is no point piling more legislation onto already overstretched national justice systems and practitioners and courts which cannot cope already.
As the EU introduces the Succession Regulation this August and is bringing forward later this year the draft Marital Property Regulation, it is essential that it makes sure that there is a common or level playing field, that justice systems around Europe have some minimum standards of efficiency, speed and satisfactory process. At a time when within politics there is much discussion of twin track economic, commercial and financial progress amongst different EU member states, we should be seeking a good standard of efficient family justice systems across all of Europe; we are all forced onto one track through EU family law legislation but it is operating very slowly in places. Only the EU has power to bring about change in justice systems of member states. Troublingly, at the moment the EU seems unwilling to recognise this is even a problem. The first stage is to recognise the extent of the problem and listen to practitioners. The next stage is to find ways to work with some national justice systems to bring them up to minimum acceptable standards, particularly to prevent real hardship and injustice through long delays.
One solution might be for the EU to impose time periods for national family courts to deal with particular issues e.g. service of divorce proceedings from time of issue, resolution of forum dispute or jurisdiction dispute, and similar. Brussels II imposed a six week timetable for child abduction return applications. Some countries mostly comply. The existence of the timetable in the EU legislation makes it easier for pressure to be put on some countries to improve and increase the speed of dealing with particular matters. As Brussels II is being reviewed at this present time, it may well be timely to introduce a standardised cross EU timetable for dealing with forum, jurisdiction and service.
It is most classically the case of national justice delayed means international justice is denied
I am grateful to Rosario Genova of MLS Lawyers and Solicitors of Marbella (http://mlslegal.es/en/) for her assistance although responsibility for the article is entirely mine
David Hodson OBE is an English solicitor, mediator, arbitrator, an Australian qualified solicitor and barrister and a part time deputy family court judge in London (DDJ at the CFC). He is a co-founding partner of The International Family Law Group LLP, a specialist practice in Covent Garden, London, (www.iflg.uk.com) serving the interests of international families and their children. He is editor and a primary author of The International Family Law Practice (Jordans), England’s leading textbook on international family law