David Hodson OBE and Marjet van Yperen
The Brussels Regulation, generally known as Brussels II bis, was originally introduced in March 2000. One laudable intention was to provide the same jurisdictional basis for a divorce and similar marital proceedings across the whole of the EU, comprising more than 500 million citizens. But the Netherlands Parliament has not fully embraced all of the jurisdictional grounds, giving inadequate access to justice and to divorce proceedings for Dutch nationals. For observers outside the Netherlands, this state of affairs seems quite amazing.
Brussels II provides specific jurisdiction for divorce, separation and related status proceedings to be the same across the entire EU. It is found in Article 3, with minor ancillary grounds found in Arts 4 and 5 (although for this article they are taken as part of Art 3). There are seven grounds for jurisdiction in Article 3. Wherever it refers to nationality, in fact domicile applies instead for the UK and the Republic of Ireland.
Fundamentally jurisdiction can only be under Article 3 if it is available.
However there may be circumstances in which no EU member state has jurisdiction in a particular case in accordance with Article 3. Brussels II therefore makes provision in Art 7 for what is known as “residual jurisdiction”. Where no member state has jurisdiction under Art 3 – 5, each member state may provide its own laws for additional jurisdiction. In the UK and the Republic of Ireland this is sole domicile (s5.2 Domicile and Matrimonial Proceedings Act 1973). Across the remainder of the EU it is believed to be sole nationality.
But not in the Netherlands. The Parliament simply endorsed the jurisdiction in Brussels II Arts 3 – 5 but did not introduce any additional, residual jurisdiction. This produces real hardship for some Dutch nationals.
It may be seen in the following situations.
An English wife and Canadian husband live in Cambodia where he is working. On the basis that neither want to be divorced through the family court system of Cambodia, the English woman can divorce in England because of her sole domicile. It will be a matter for common law discretion whether England or Canada has the closer connection. But she has the opportunity of England for her divorce. The sole domicile residual jurisdiction basis arises because neither England nor any other EU member state has jurisdiction under Arts 3 – 5.
In similar circumstances a French wife with Canadian husband living in Cambodia can issue in the French courts on the basis of her French nationality which is the residual jurisdictional basis of France.
But in identical circumstances a Dutch wife married to a Canadian man living in Cambodia cannot divorce through the courts of the Netherlands even though she is a Dutch national. It is not possible because the residual jurisdiction opportunity has not been introduced into Dutch law.
This causes continual difficulties for Dutch specialist family lawyers consulted by Dutch nationals living outside the EU and seeking a divorce through the courts of their home country. The courts will not allow divorce because there is no basis allowed under Dutch law for the residual jurisdiction. Even if both spouses agree to Dutch jurisdiction the Dutch courts cannot accept international competence because a choice of forum is not possible (yet) under Brussels II bis. There have been countless cases where this advice has had to be given and caused much frustration and anguish for Dutch nationals (not married with another Dutch national) living and working abroad, especially when they are aware, in expat communities and similar, that other EU nationals can use their home country family courts on the basis of sole nationality or sole domicile, as applicable.
It may be that there are other member states also without Art 7 residual jurisdiction and we would very much welcome hearing from family law practitioners across the EU if there are other countries in the situation of the Netherlands.
Of course it should be changed because this creates hardship and prejudice to the citizens of one EU member state. For the sake of Dutch citizens living outside the EU and for the sake of an autonomous justice system across all of the EU, we call on the Dutch Parliament urgently to introduce the provision for residual jurisdiction for divorce under the Brussels Regulation.
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. He is visiting Professor at the University of Law
Marjet van Yperen-Groenleer is an associate partner at GMW advocaten (www.gmw.nl) in The Hague. She has been active in family law for 15 years. Her focus is on (international) divorces, in particular the financial aspects. She is a member of the Association of Family Lawyers and Divorce Mediators (vFAS) and a lecturer in international private law at Leiden University. She assists many expats with their divorce. This refers to both non-Dutch residents in The Netherlands as well as to Dutch nationals living abroad. Marjet specializes in finalizing financially complex matters with different jurisdictions.
Marjet van Yperen