Since 1993, the Working Party on the Extension of the Brussels Convention has been in charge of drafting the wording of the Convention. The discussions dragged on for a long time and were extremely tough at several points. Final political agreement was gained on a number of elements based on the Presidency’s final compromise proposal during the Council meeting in December 1997 under the Luxembourg Presidency.
An international agreement called the Hague Divorce Convention was signed by the Hague Conference on Private International Law in order to recognize divorces and legal separations from other countries (HCCH). As long as divorce was granted in accordance with the proper legal procedure in the state where the divorce was granted, it may be recognized.
BACKGROUND
In the first place, it is important to remember the reasons for the exclusion from the 1968 Brussels Convention.
Secondly, divorce and marital problems are the most important issues in family law. At a period when there were only six Member States, the Jenard report alludes to ‘severe divergences’ across legal systems, In other cases, they are even constitutionally significant changes. When it comes to different sorts of civil status covered by the Convention, there are complications (for instance, separation and annulment are unknown in the national law of Finland and Sweden)
This means that neither the length of the convention nor the compromises that have to be made can come as a surprise. Property and family law are distinct, as shown by this Convention’s omission from 1968. After thirty years, European integration has progressed significantly since the 1968 Brussels Convention was written up. It was necessary to respond to the rising frequency of familial connections between people who are citizens or residents of different nations, and this Convention provides such a legal answer.
The topic of whether a convention on jurisdiction and the acceptance and enforcement of judgments in marriage cases was essential was thoroughly debated. Results from implementing the Hague Convention on the Recognition of Divorces and Legal Separations have been praised by the several Member States. The other Member States, on the other hand, said that they would not sign on to the Hague Convention of 1970. As a starting point, there were three main reasons to contemplate drafting up a new European convention being the demand for uniformity in the jurisdiction in matrimonial disputes, the need to develop a common mechanism for the recognition and enforcement of annulment, divorce, and separation judgments across the European Union and the establishment of regulations on lis pendens, an innovation that on its own would justify the Convention and contribute to the prevention of inconsistent judgments, is a reason for the Convention.
HOW HAS THE CONVENTION EVOLVED
The original goal of the Convention was to include marriage disputes in the scope of the 1968 Brussels Convention. As a result, the wording of the 1968 Convention, which is acknowledged in the preamble, served as a springboard for work on this Convention. This crucial background could not have been ignored, given its demonstrated success and the wealth of case law from the Court of Justice of the European Communities, which allowed us to focus on the most contentious aspects of the text. Despite this, there are substantial variations between the two texts in certain areas (such as the lack of a public forum and any hierarchy in the grounds of jurisdiction), while the rules are more similar in others (as for lis pendens and automatic recognition). The result is a different convention, despite the fact that the goal is the same: to harmonize international jurisdiction laws and enable worldwide recognition and execution of judgments.
Therefore, the case-law of the Court of Justice of the European Communities must be examined since the similar wording in the 1968 Brussels Convention and this Convention must in theory be understood to imply the same thing. For clauses that are worded identically to those in the Brussels Convention, the explanatory reports for the 1968 Convention and its subsequent revisions include no new information. In order to save the courts from having to study several documents, it was deemed prudent to copy the relevant passages of the previous report in this one.
After the Treaty came into effect, the European Council held a two-day conference in Brussels on December 10 and 11, 1993, and concluded that it would need more effort in specific areas of the family life of European citizens. To that aim, the Council concluded that the 1968 Brussels Convention should be examined for the possibility of expanding its scope to include family law problems.
The Hague Conference on Private International Law’s involvement in the development of the Convention cannot be overlooked. The Hague Conference on Private International Law revised the Convention of 5th October 1961 on the powers of authorities and the law applicable to the protection of infants at the same time the European Union was working on the Convention on Jurisdiction and Recognition and Enforcement of Judgments in Matrimonial Matters.
While the European Union has observer status at the Hague Conference, it is not permitted to do the opposite under the Treaties creating the European Community and the Treaty of European Union. The Permanent Bureau of The Hague Conference on Private International Law was invited to meet informally with representatives of all three institutions during the first half of 1995, starting during France’s Presidency. This was done to discuss how the texts being drafted at both institutions were linked.
PROCEDURES
The focus is on a treaty signed by the European Union’s member states on the jurisdiction, applicable law, recognition, enforcement, and cooperation in respect of parental responsibility and measures to protect children from abuse and neglect. This treaty, as well as the Hague Convention of October 19, 1996, address the same issues.
Only those divorces obtained in a state where (at the time of the start of the proceedings) the ‘respondent‘ had its residence or the ‘petitioner’ [A.] corresponds to the nationality of both spouses; [B.] corresponds to the nationality of the petitioner and where they lived, or had lived for 1 year in the past 2 years and [C..] corresponds to the nationality of the petitioner, and where they are present, while the last state of their joint residence does not provide for divorce
Convention on the Recognition of Divorces and Legal Separations is its official name. Written on June 1, 1970, it went into effect on August 24, 1975.
Divorces and legal separations may be recognized if they were acquired via the proper legal procedure in the state where they were granted. The Hague Conference on Private International Law produced the first international treaties on marriage and divorce. It was in 1902 that the first divorce and separation laws were enacted. The goal of the Convention of 1970 is to make it easier for divorces and separations acquired in one contracting state to be recognized in another contracting state. As a result, divorced couples may rest certain that their new status will be recognized overseas in the same way as in the nation where they received their divorce. The divorce is automatically recognized, making it easier to remarry. It explains the legal status of the couple in question.
Art. 1 states that divorce resulting through judicial or other actions recognized by the state and legally binding in the state are covered by this provision. A state-approved organization in England might recognize talaqs and other religious divorces that are not recognized by civil courts in other European countries. An administrative process that is recognized by the nation where it was pronounced is included in the term.
Only the final decree or order of divorce is covered under the Convention on Legal Separation and Divorce. No findings of culpability or ancillary divorce orders are covered under Art 1. The Convention does not provide for the annulment of marriages. The Convention does not cover the process of registering a divorce in a foreign nation.
Like Brussels II, it does not provide direct rules of jurisdiction. However, a divorce may only be recognized if the state where the divorce happened has particular ties. Art 2 lays them out in a general way. Habitual residence of the respondent, the petitioner’s habitual residence along with one year of habitual residence or the last joint habitual residence, joint nationality and nationality of both parties, or the nationality of the petitioner along with the physical presence and last joint habitual residence in a country where they resided prior to instituting proceedings.
Habitual residency is defined in Article 3 as including domicile in nations like England and Wales where nationality is not a requirement.
Recognition may be denied because proper notice was not given to the respondent in accordance with Art. 8; or because the divorce is irreconcilable with an earlier divorce decision which has been recognized as such by the state to which recognition is sought, Art. 9. Art. 10 of the Constitution allows for the refusal of recognition if it would be clearly at odds with national policy. Additionally, rejection of recognition might be governed by specific regulations that seldom come into play. A signatory State may postpone divorce or legal separation procedures in one nation if there are also processes taking place in another contracting state regarding the marital status of either party.
Art. 11 of the Convention states that a state cannot prohibit a divorce from being recognized by another state’s law and therefore prevent either spouse from remarrying.
LEGAL BASIS OF THE CONVENTION
A noteworthy success in terms of European Union judicial cooperation in civil issues is the accurate and suitable handling of the subject matter of the Convention. As a result, Article K.3 of the Treaty was selected as the legal foundation for the Convention, despite the fact that Article 220 was theoretically viable. For this reason, it is important to note that the legal foundation has ramifications for the drafting process, but not for lawyers or citizens when it comes to enforcing or applying the Convention.
The Council ratified the Convention on 28 May 1998, which was signed by the representatives of all Member States on the same day. The Preamble, which focuses on four main points, reveals the Convention’s concerns and thoughts as it prepares to convene.
First, a desire to implement current norms for jurisdiction in annulment and divorce cases, as well as to enable the speedy and automatic recognition across the Member States of decisions on such issues issued in the Member States. As a result, it is essential to establish a set of norms controlling parental responsibility for the children of both spouses during such procedures, which will make it easier to recognize and enforce the applicable judgments swiftly and automatically.
The Court of Justice of the European Union (CJEU) might be given the competence to interpret the Convention’s terms. The court states that it is a ‘double treaty,’ since it includes both rules for direct jurisdiction and provisions for the recognition and execution of foreign judgments. This convention has its roots in that of the Brussels Convention, which was groundbreaking at the time, although it has undergone significant modifications. It is therefore necessary to set up the norms of international jurisdiction that will cause the court of origin to deny jurisdiction if the provisions of the Convention aren’t in its favor. It is possible to develop a climate of mutual trust and provide legal certainty for the citizenry, enabling the implementation of an automated recognition and enforcement system that is substantially simplified.
The Convention will become applicable ex officio after it has been accepted by the Member States in line with constitutional criteria and has been implemented in each Member State. As a result, all of the Convention’s rules must be applied and, as of the date of entry into force, those rules will take precedence over all other national or contractual provisions, subject only to the limitations of the Convention itself and in accordance with the applicable constitutional framework. In this way, the mechanism’s foundation and integration into national law in each Member State are both accomplished at the same time. Therefore, only national law will apply to situations that aren’t specifically addressed by the Convention.
ORGANISATION OF THE CONVENTION
Titles II and III are clearly the most important parts of the Convention and have been afforded the most attention (jurisdiction and recognition and enforcement of judgments). As a whole, the argument over scope was reflected in the discussion of these two topics in particular.
Title II lays forth the requirements that must be followed before a decision in a marriage case may be rendered by the court of origin. In states where the legal systems have not been unified, however, these principles have no effect on the allocation of territorial jurisdiction. Direct matrimonial jurisdiction is without a doubt the Convention’s most significant innovation. International treaties relating to such topics are usually limited to recognition and execution of judgments and regulations on indirect jurisdiction — that is to say, a court’s ability to determine whether it has jurisdiction over a particular case.
To begin, there are rules in Section 1 regarding jurisdiction, which are more specifically referred to as the ‘strict basis for jurisdiction’ (Articles 2 to 8). There are two main provisions: Article 2 lays out the reasons in marital cases and Articles 3 and 4 deal with parental duty and the specific regulation pertaining to the 1980 Hague Convention, respectively. Afterward, Article 5 deals with counterclaims, while Article 6 deals with the conversion of legal separation into a divorce. Article 7 deals with the exclusive nature of jurisdiction under Articles 2 to 6, while Article 8 deals with residual jurisdiction and is analogous to Article 4 of the 1968 Brussels Convention.
As outlined in the Convention, Articles 9 and 10 of Section 2 examine jurisdiction and whether or not the respondent has been able to make arrangements for the defense. Lis pendens and dependent acts are discussed in Section 3 (Article 11).
In Section 4 (Article 12), the provisional and protective measures are discussed in further detail.
In light of Title II, Title III focuses on the recognition and execution of court orders. Even while it seemed as if things would be simple after the previous articles’ topics had been addressed, this was far from the case. Discussions focus mostly on automatic recognition’s impact on civil status records and the grounds for non-recognition and enforcement. Furthermore, it was necessary to take into consideration the fact that the recognition was limited to the breakdown of the relationship and not to other issues (see paragraphs 22 and 64). As a result of this dilemma, there is a reduction in the requirement for enforcement. The Brussels Convention’s enforcement mechanism is quite similar to this one.
Transitional and general provisions may be found in Title IV; the general provisions can be found in Title V, and final provisions can be found in Title VII.
Sources
1. The Jenard report (which served as an explanation for the Convention’s initial draught) provided the following justification for the exclusion of human subjects from its scope:
If the Committee had been successful in unifying the rules of jurisdiction in this field, it would have been difficult not to reexamine the rules of jurisdiction at the enforcement stage, regardless of the rules chosen by the Committee. This is especially true with regard to the rules of conflict of laws. If this had been done, the Convention’s essence would have been altered, making it less effective. It’s also possible that the court of enforcement would have been tempted to abuse the public policy concept by refusing to recognize foreign judgments referred to it if the Committee had agreed to withdraw all powers of examination from the court of enforcement, even in matters not relating to property rights. As a compromise, the Committee members decided to keep the draft’s unity and effectiveness while narrowing its scope. Divorce is clearly the most significant issue when it comes to status and legal ability because of the vast divergences across the different legal systems.’
2. The person against whom proceedings were started
3. Such divorces and legal separations shall be recognized in all other Contracting States, subject to the remaining terms of this Convention, if, at the date of the institution of the proceedings in the State of the divorce or legal separation (hereinafter called ‘the State of origin’) –
(1) the respondent had his habitual residence there; or
(2) the petitioner had his habitual residence there and one of the following further conditions was fulfilled –
a) such habitual residence had continued for not less than one year immediately prior to the institution of proceedings;
b) the spouses last habitually resided there together; or
(3) both spouses were nationals of that State; or
(4) the petitioner was a national of that State and one of the following further conditions was fulfilled –
a) the petitioner had his habitual residence there; or
b) he had habitually resided there for a continuous period of one year falling, at least in part, within the two years preceding the institution of the proceedings; or
(5) the petitioner for divorce was a national of that State and both the following further conditions were fulfilled –
a) the petitioner was present in that State at the date of institution of the proceedings and
b) the spouses last habitually resided together in a State whose law, at the date of institution of the proceedings, did not provide for divorce.
4. The Recognition of Divorces and Legal Separations Act 1971 made it legal in England and Wales
5. There are a total of twenty signatories to this agreement. In total, these countries include the following: Albania, Australia, China in respect of Hong Kong; Cyprus; Czech Republic; Denmark; Egypt; Finland; Italy; Luxembourg; Moldova; Netherlands; Norway; Portugal; Slovakia; Sweden; Switzerland; and the United Kingdom to include Bermuda, Guernsey, Jersey, and the Isle of Man. In other words, it includes all 12 EU countries and the United Kingdom.
6. It must be known that as part of the process of ratification or acceptance, it is possible to make reservations.
