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RESOLVING THE PROBLEMS OF JURISDICTION IN FAMILY LAW BRUSSELS II AND POINTS WEST Janys M. Scott, ... - page 6 / 12

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intended to limit the powers of the court in financial matters. All orders for financial provision on divorce should therefore be available in divorce proceedings, wherever the parties’ property may be situated.

Not all EU countries apply domestic law on divorce. Some have rules of private international law, which require application of the law of the parties’ nationality, or may allow parties to specify the applicable law. The Commission has now turned its attention to the question of applicable law. From Brussels II bis, we are advancing to “Rome III”, which involves proposals for harmonisation of applicable law rules. This would mean that member states of the EU would be bound by Regulation to apply a particular law to the divorce, and possibly ancillary matters. It might, but need not, be the local law. It could be a law of the parties’ choice, or the law of closest connection to the parties or the marriage. This is currently under discussion.

Where there are competing actions in Scotland and one of the places to which Brussels II bis does not apply, then the Scottish court may be invited to sist the Scottish action under paragraph 9 of schedule 3 to the Domicile and Matrimonial Proceedings Act 1973. The test for a sist is “the balance of fairness (including convenience) as between the parties to the marriage”. The court is obliged to have regard to all the factors appearing to be relevant, including the convenience of witnesses and any delay or expense which may result from the proceedings being sisted, or not being sisted. The relevant authorities are De Dampierre v De Dampierre 1988 AC 92 and Mitchell v Mitchell 1992 SC 372.

Jurisdiction in relation to parental responsibility Then original Brussels II Regulation covered matters of parental responsibility in the limited sphere of matrimonial proceedings between the parents. Brussels II bis now extends the European rules of jurisdiction to matters of parental responsibility generally. The Regulation covers cases of attribution, exercise, delegation, restriction or termination of parental responsibility (article 1). There is not however an exact match with Scottish notions of the matters covered by the concept of parental responsibility. The Regulation expressly extends to:

  • rights of custody and rights of access

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