Posts Tagged Vorfrage
A succinct post on the French Supreme Court judgment 18-19665 MP v ML of 19 September last. Thank you Hélène Péroz for alerting us to the judgment. A French couple, married in 1995, file for divorce in 2012 when the husband discovers his wife has been married before, in Las Vegas, 1981. He requests his marriage be declared invalid on the grounds of bigamy. To settle the ‘divorce’ the courts therefore need to first settle the incidental question or Vorfrage of prior marriage, much like in the archetypal Vorfrage judgment of Schwebel v Unger.
Under French law consent to marriage is covered by the lex patriae which for both partners in this case is French. The Supreme Court confirms the lower courts’ discretion to find as a matter of fact whether or not there was such consent, which in casu they had found there was not on the basis of the wife having presented the Vegas trip to her friends as not being of real consequence; no banns of marriage having been published, no effort having been undertaken by the partners to have their Vegas ‘wedding’ registered in France, no reference to the marriage having been made at the time of registration of the birth of their child, and both partners having entered into relationships after the ‘marriage’.
(Handbook of) EU private international law, 2nd ed. 2016, Chapter 1, Heading 1.4.
As Williams J notes at 5,  EWFC 54 Akhter v Khan is not about
‘whether an Islamic marriage ceremony (a Nikah) should be treated as creating a valid marriage in English law. In fact, the main issue as it has emerged is almost diametrically the opposite of that question; namely whether a Nikah marriage ceremony creates an invalid or void marriage in English law. To the average non-lawyer in 2018, it may appear an easy question to answer. Surely a marriage which is not a valid marriage is a void marriage and thus can be annulled? Regrettably it is not that simple.‘
The Guardian explain here why it is not that simple, and Ralf Michaels has analysis here. In essence (the remainder of this para is largely based on Ralf’s text), many muslims in the UK only perform Nikah and not a civil ceremony. The latter is firmly required under English law (indeed under the law of many European countries; where unlike in the English example, a religious ceremony must not even double up as a civil one, and the latter must always precede the religious one). Nikah hitherto had been considered a non-marriage which the law could ignore, because it did not even purport to comply with the requirements of English law. The High Court was unwilling to presume the lived marriage as valid.
Williams J however declared the marriage at issue void under the Matrimonial Causes Act 1973. The wife was granted a decree of nullity. This has extremely relevant consequences in terms of ‘matrimonial’ property, and maintenance obligations, including those vis-a-vis the children. The Court’s analysis of human rights law is extensive, including of course with the ECHR gateway (via the Human Rights Act 1998) and the UNRC: the UN Convention on the Right of the Child. In this respect Williams J’s analysis is not unlike that of classic ordre public considerations: which are always case-specific and take into account the hardship caused to the individuals involved, were a foreign legal concept not recognised in the forum.
The Court has set an important precedent – but like all precedent of course there is case-specificity (the length of the lived marriage, the children,…
Of note is that applicable law in the case was firmly English law. Recognition of the marriage as such in the UAE did play a role in the judge’s assessment.
All in all an important case viz the discussion on multiculturality and family law in Europe.
I reviewed the AG’s Opinion in Case C-372/16 here. The Court held late December. Like the AG, it held that Rome III does not cover divorces which are declared without a constitutive decision of a court or other public authority: it squarely uses the Regulation itself to come to this view, without any assessment of whether the foreign State’s courts in private sharia divorces, has any impact on that conclusion.
With the first question answered in the negative, the other, very interesting issues covered by AG, became without subject. A judgment not with a bang, but with a whimper.
In Case C-372/16 Sahyouni Saugmandsgaard ØE Opined Friday last (Opinion not yet available in EN at the time of writing of this post; the curia press release on the case helps). The case concerns the scope of application of Rome III, Regulation 1259/2010 (on enhanced co-operation Regulation on divorce and legal separation), as well as the application of its Article 10. This Article inserts the lex fori for the lex causae, where the lex causae as identified by the Regulation makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex.
In the previous Sahyouni Case C‑281/15, the request was considered inadmissible for lack of factual beef to the bone to allow the Court to apply its Dzodzi case-law (Joined Cases C‑297/88 and C‑197/89). In that case, the Court had held that the authors of the Treaty did not intend to exclude from the jurisdiction of the Court requests for a preliminary ruling on a provision of EU law in the specific case where the national law of a Member State refers to the content of that provision in order to determine rules applicable to a situation which is purely internal to that State and that, on the contrary, it is manifestly in the interest of the EU legal order that, in order to forestall future differences of interpretation, every provision of EU law should be given a uniform interpretation irrespective of the circumstances in which it is to be applied.
In the case at hand, Rome III is not generally applicable to decisions on divorce and legal separation issued by the authorities of third States. German residual private international law on the matter, however, makes it so applicable.
Saugmandsgaard ØE first of all opines that the national court now does give the CJEU enough information for it to rule on the case. Contrary to what the German legislature assumed, however, the AG suggests Rome III does not cover divorces which are declared without a constitutive decision of a court or other public authority, such as a divorce resulting from the unilateral declaration of a spouse which is registered by a religious court. Note that the AG for this purpose employs lex fori in the sense of EU law (the Regulation and its preparatory works), to determine whether such divorce is ‘private’ or not; not as might be considered an alternative in the case at hand, Syrian law. Those of us with an interest in Vorfrage may find this interesting.
Next, the AG does complete the analysis should the Court disagree with his view on scope of application. The question whether access to divorce provided for by the foreign law is discriminatory (this is the test of the aforementioned Article 10) must, in the view of the AG, be assessed in the abstract, and not specifically in the light of the circumstances of the case. Therefore, it suffices that the applicable foreign law be discriminatory by virtue of its content for it to be disapplied.
The AG suggests that the EU legislature considered that the discrimination at issue, namely that based on the sex of the spouse, is so serious as to warrant unqualified rejection, without the possibility of exception on a case-by-case basis, of the entirety of the law which should have been applied in the absence of such discrimination. This interpretation differs from the standard application of another well-known mechanism, that of ordre public, where any assessment needs to be based on a case-by-case basis. (Note prof Mathias Rohe’s disagreement on this point here).
Finally, the AG examines whether the fact that the spouse discriminated against possibly consented to the divorce allows the national court not to disapply the foreign law despite its discriminatory nature, and therefore to apply that law. He suggests that question be answered in the negative. The rule set out in Article 10 of the ‘Rome III’ Regulation, which is based on compliance with values considered to be fundamental, is mandatory in nature and therefore, as a result of the intention of the EU legislature, does not fall within the sphere in which the persons at issue can freely waive the protection of their rights.
A judgment to look out for.
The Council in June issued its ‘General Approach‘ on the review of the Brussels I Regulation /the Jurisdiction Regulation . The General Approach is the backbone of what will be the Council Common Position, once the European Parliament has held its ‘first reading’ (which is now scheduled for November 2012, after having been postponed twice: from January 2012 it had already been moved to June). I commented here on the arbitration exception and here on the protected categories.
In its General Approach on the review of the Brussels I Regulation, the Council of the EU proposes the following with respect to choice of court agreements:
If the parties, regardless of domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State.
The Commission had proposed ‘substance’ rather than the words ‘substantive validity’. The Council also suggest inserting a recital as follows:
The question as to whether a choice of court agreement in favour of a court or the courts of a Member State is null and void as to its substantive validity should be decided in accordance with the law of that Member State. The reference to the law of the Member State of the chosen court should include the conflict of laws rules of that State.
Finally, the Council prooses to add a fifht para to Article 23 as follows:
‘5. An agreement conferring jurisdiction which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.
The validity of the agreement conferring jurisdiction cannot be contested solely on the ground that the contract is not valid.’’
Both the Council and the Commission proposal address the elephant in the room: Article 23 of the Jurisdiction Regulation lists a number of requirements establishing consent to choice of court agreements, however it does not address any conditions for the validity of the underlying agreement. The majority of ECJ authority would seem to favour having the validity of the forum clause to be exclusively determined by the conditions of Article 23. I would however submit that the material validity of the forum clause under the curent version of the JR ought to be determined by the lex contractus.
The result of the discussion is unsatisfactory, as in practice it leaves it up to the Member States to decide how to address the substantive validity of choice of court agreements. This is now addressed by the Commission in its proposal for review of the JR: the proposal introduces a harmonised conflict of law rule on the substantive validity of choice of court agreements, thus ensuring a similar outcome on this matter whatever the court seized. The Council amendment aims at making the solution clearer still.
Oddly, the Council adds renvoi to the mix (see ‘The reference to the law of the Member State of the chosen court should include the conflict of laws rules of that State.’). EU private international law, for good (mostly practical) reasons typically excludes renvoi. I am not entirely sure that adding it here has any merit.
Note that in line with the Hague Convention on Choice of Court Agreements, it will no longer be necessary for at least one of the parties to be domiciled in the EU, for an agreement giving jurisdiction to a court in the EU to be covered by the JR.