The infamous "Eurostar divorce", signaling the tense and often high stakes jurisdiction race between France and England will be put to the test on 1 January 2021, due to simultaneous and game changing transformations in both English and French law.
After 11pm on 31 December 2020 and a result of Brexit, the reciprocal application of the EU Regulation n° 2201/2003 (called Brussels II bis) between England and France will end. This regulation provides that the court seized first in time will rule on the divorce and its financial consequences, historically prompting many jurisdiction races between France and England and forcing lawyers (certainly in France) to time stamp their petitions in case they were five minutes faster.
On the same date, an extensive reform on divorce proceedings in France will also come into effect modifying how one determines the date on which a spouse has petitioned the court and resulting in much speculation and uncertainty as to when exactly that date is to be.
Because of these two major changes, determining where a divorce should go ahead when spouses have petitioned in England and filed in France will be of an unprecedented complexity. Succeeding in a jurisdiction race after 1 January will depend on how the courts will interpret (i) the obligation to defer to a foreign court that was seized first and (ii) what it means for a court to be seized first.
The first to petition no longer necessarily wins the jurisdiction race
Such 'races' will become more difficult after 1 January , as England and Wales will no longer adhere to Brussels II bis Regulation and France will no longer consider England and Wales as a Member State. Consequently, the obligation for English courts to defer to French courts if they were seized first and vice versa will no longer be automatic. Timing will no longer be determinative.
In France, the general rules of international lis pendens (meaning when the French courts will decline hearing a case if a foreign court was seized first) are set out by the French Civil Procedure Code. These rules apply to non-Member States and give way to more room for interpretation on whether the French courts should defer to a foreign court. For instance, the French courts could question the enforceability in France of the foreign judgement sought abroad and decide the matter should be heard through the French legal system.
In England, from 1 January 2021, there will be a reversion to various Hague Conventions and national law. Whilst Brussels II will apply to all proceedings issued in England prior to the cut off time at the end of this year (even if enforcement or recognition is sought after 1 January), for new petitions this will no longer be the case and it will no longer be a question of who is 'first in time' in any potential race, but rather an examination as to which competing jurisdiction the party(ies) have the 'closest connection' with or 'forum conveniens'. This will clearly be open to debate, argument and interpretation, no doubt leading in contested cases to there being litigation from the outset, with all the costs and aggravation this is likely to cause.
The uncertainty of knowing who is first in time after 1 January 2021
Under the current system in France, a spouse simply submits a unilateral petition that sets out a summary of their request for provisional measures. The petition can be drafted and submitted within 24 hours. The court clerk time stamps the petition, and the spouse can be certain of when the French court was seized.
As of 1 January 2021, this system will no longer be in existence for the normal divorce channels. Spouses will be obliged to seize the courts through an “assignation”, which requires serving the other spouse through a bailiff or equivalent authority and then submitting the served document to court.
If a petition has to be served, the court is “seized” in domestic cases without an international element at the time the served petition is submitted to the court. The process in France to be able to serve the petition is now also to be significantly more laborious and time consuming. A party must first obtain a hearing date on the preliminary measures. The petition with the court date is then sent to a French process server (huissier or bailiff) who transmits it to his or her counterpart in the country where the other spouse lives, who in turn will send it back to the French process server after service is completed. Such international service can take weeks and even months to be completed.
Determining at which stage during this process the French courts are “seized” has given rise to much debate in France and no clear answer or consensus is currently available. Certain authors think the date on which the request for a hearing date is made should determine when the court is seized. Others consider it is when the petition has been sent out to be served by the bailiff or even when the entity to serve in a foreign country has received the petition to be served (it is of note in this regard, that as a result of the European Regulations no longer applying in England after 31 December, it will become possible to directly serve a French divorce Petition in England, which is likely to speed up the process). Under purely domestic rules, it could also be the date on which the served petition is submitted to the court.
Until the government has given clear guidelines on this issue, there is currently no clear-cut way of determining when a spouse has seized the French courts in the context of a jurisdiction battle.
In addition, the new reform in France forces spouses to detail their proposal for the division of assets, whereas before it was possible to submit a summarized version of the facts and interim measures sought. Consequently, French counsel will now have to spend a considerable amount of time with clients to go over this information prior to filing divorce proceedings.
Similarly, after the end of this year, in England, the Court, in the event of a dispute as to which jurisdiction should properly be seized, will no longer simply consider the timing of the submitted paperwork, but instead will consider evidence as to which 'forum' is the most appropriate when examining the history and current circumstances of the parties, what will in tightly contested cases become an exercise in judicial discretion.
Ability of the English courts to determine the most appropriate forum
Early litigation in England to determine the appropriate forum to commence divorce proceedings is likely to engender further litigation. Injunctions to prevent one set of competing proceedings continuing (the Hemain injunction of old) may well become the new normal again.
A further significant complication of a post Brexit world is that whilst from 1 January 2021, signatories to the 1970 Hague Divorce Convention (France being a notable exception) will continue to automatically recognize an English Order, those EU countries who are not signatories, will apply domestic law and so the practice of dealing with this is likely to vary across the EU. And technically, vice versa for anyone attempting to have their Orders recognized in England albeit the English have historically been very liberal in their recognition of overseas divorces and so realistically this is unlikely to be a problem.
All in all however, the effect of the above is likely to add to the cost, uncertainty and difficulty of future cross border Franco-British divorces.
In light of these major changes in how the courts will deal with Franco-British divorces, lawyers can no longer as easily reassure their clients that they will be able to retain the jurisdiction of either the French or English courts. Consequently, what was already complex cross-border litigation and was only advised for clients of certain means will most likely become even less attainable for the average client given the litigation costs associated with such uncertainty. It is therefore necessary, now more than ever, to clearly identify the stakes for each client and whether having them be among the first to test these new rules is worth the risk taken.