Suchergebnisse

In the United Kingdom the law pertaining to domicile has the rather dubious distinction that, although subjected to concerted criticism from commentators and law reformers alike for over half a century, it has largely remained unchanged.1 Common law jurisdictions around the world have succeeded in passing legislation which, to varying degrees, has modernized the concept,2 yet in Britain a series of initiatives have either failed to complete the legislative process or not even made it to Parliament.3 The reason in each instance was less the substance of the proposals, but rather political expediency in the face of pressure from the overseas business community resident in the United Kingdom, who feared extended fiscal liability if the connecting factors were attributed with a less legalistic interpretation.4

Family law may not be an area one immediately associates with the European Community but in recent years it has rapidly emerged as an important element of the ever-expanding portfolio of the Justice and Home Affairs Directorate General.1Facilitating the circulation of family law orders through the harmonization of private international law rules is viewed in Community circles as essential if the free movement of persons is to be guaranteed within the European Union.2The merits of this policy and the manner in which the transformation of the Brussels II Convention3into a Council Regulation4was used to acquire wider competence in respect of family law matters have both previously been considered.5In the present paper such policy considerations are left aside to allow for a detailed analysis of those rules which deal with divorce and their effect on English and Scottish law.

At the Justice and Home Affairs (JHA) Council meeting in Brussels on 2 and 3 October 2003 final political agreement was reached on a new and expanded version of the Brussels II Regulation, a text which has commonly become known as Brussels II bis. The instrument, which was adopted by the JHA ministers on 27 November, has now received formal classification as Council Regulation No 2201/2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and Matters Relating to Parental Responsibility Repealing Regulation (EC) No 1347/2000.1 The net result of this precipitous reform is that Brussels JJ shall cease to have effect from 1 May 2005,2 a mere 4 years and 2 months after it entered into force. Henceforth there will be a single, integrated instrument which will cover, inter alia, the free movement of judgments in matters of parental responsibility as well as of matrimonial judgments and introduce provisions on cooperation between Member States.

Belgium has now become the second jurisdiction worldwide, after the Netherlands,1 to allow same-sex marriages. The bill opening marriage to persons of the same-sex and modifying certain provisions of the Civil Code2 was adopted by a large majority and without modification by the Belgian parliament on 30 January 2003. While the new law was promulgated by King Albert II on 13 February 2003 and published in the third edition of the Moniteur beige on 28 Febuary3, it did not enter into force until 1 June 2003. This somewhat unusual time delay was required to ensure that all officials with competence to celebrate marriages (officiers de I' état civil) had sufficient time to become familiar with the scope of the new rules.4

On 1 March 2001Council Regulation (EC) No 1347/2000 of 29 May 2000 on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and in Matters of Parental Responsibility for Children of both Spouses(Brussels II) entered into force.1In the United Kingdom at least this significant step went relatively unnoticed. Nevertheless, the Regulation marks a new departure for the European Community and is likely to be but the first in a series of instruments dealing with family law issues. This article will use an analysis of the evolution of the Brussels II initiative to explore how and why the European Community has been able to move into an area not innately associated with traditional European goals.2It will then reflect on the wider impact of the Regulation and any future initiatives for private international law and family law in Europe.

On 1 March 2005 the European Court of Justice in Owusu v Jackson held that the English doctrine of forum non conveniens was inconsistent with the Brussels Convention (the 'Convention') when a defendant was domiciled in the United Kingdom, even if the natural forum was in a Non-Contracting State.

There continues to be a steady stream of cases, particularly those raising questions of interpretation of international instruments. Many nevertheless involve the application of those instruments to particular facts, rather than fundamental points of principle. The following are among the more significant.