INTRODUCTION

Freedom of movement within an area of freedom, security and justice is one of the political pillars of the European Union and underpins its regime of Regulations. But international mobility of individuals and families is by no means confined to the European Union: it is worldwide. Many ‘international’ families have links to more than one country, whether within the EU or without. Against the background of high rates of marriage breakdown, the mobility of individuals and their families has posed considerable challenges for the rules of private international law. Clear jurisdictional rules on access to courts are required and the reciprocal recognition and effective enforcement of orders between countries is of vital importance.

Both EU law and national law within the UK jurisdictions have responded to the challenge. This chapter will address recent developments and current issues in rules on international jurisdiction and the recognition and enforcement of orders in divorce and ancillary financial matters. In addition to issues which have arisen to date, the UK now faces the immense legal challenges posed by the process of exiting the EU. The European Union (Withdrawal) Bill published on 13 July 2017 gives rise to many issues of constitutionality and interpretation, and it will no doubt be subject to close scrutiny and lively debate in both Houses of Parliament. The Bill's implications in the field of divorce and ancillary matters will be addressed in this chapter, albeit that a high degree of speculation is inevitable at the time of writing.

JURISDICTION IN DIVORCE

Developed legal systems require connecting factors as the prerequisite for an individual's access to courts. Subject to provisions enabling prorogation (choice of court), the connecting factors embodied in jurisdictional rules are underpinned by the policy of deterring ‘forum-shopping’, and divorce law is no exception. Neither EU law nor the domestic laws of UK jurisdictions permit prorogation of jurisdiction for divorce. Jurisdictional rules for divorce are based on the principle of a genuine connection between an individual and the country of which the courts are invoked. Rules must strike a balance between the flexibility required by family mobility and the need for legal certainty.

The jurisdiction of a court to entertain a divorce petition is stated in section 5(2) of the Domicile and Matrimonial Proceedings Act 1973.