JUSTICE 1 COMMITTEE CALLS EU DIVORCE AND SUCCESSION PROPOSALS “FUNDAMENTALLY FLAWED AND UNNECESSARY”

CJ1004/2005 | 7 October 2005

Proposed European legislation which could force Scottish courts to apply foreign law to divorce cases and require people to register a will has been called “fundamentally flawed and unnecessary” by the Justice 1 Committee today.

The Committee’s response to the European Commission follows an inquiry into two recently published EU consultation proposals on dealing with international divorces and successions when someone dies and has property in more than one European country.

The Committee concluded that the proposals were not in the best interests of Scotland, stating:

“…these proposals are fundamentally flawed and unnecessary” and that “the Committee recommends that the Scottish Executive strongly urge the UK Government not to opt in to any draft instruments which emerge following the conclusion of these consultation processes.”

Commenting on the proposed legislation, Convener of the Committee, Pauline McNeill, said:

“The European Commission has not made the case for legislation at the EU level in these areas of family law. The evidence we received from Scottish stakeholders was that there was no significant problem either with Scots law or the way our system deals with international divorces or successions. These proposals would only increase the legal complexity and costs for ordinary people caught up in these cases.”

The Committee response also highlights evidence from the Scottish Legal Aid Board that if international divorce cases were transferred from our sheriff courts to the Court of Session (as proposed), there would be a three-fold increase in the average costs incurred. (Sheriff Court average cost = £1827; Court of Session average case cost = £6649)

In response to the proposal that there should be a national register of wills maintained in each EU Member State, the Convener commented:

“The Scottish system of allowing informal wills works well as ordinary people do not need to pay for the services of a lawyer in order to make their wishes known. The proposal to create national registers of wills could threaten the validity of perfectly clear personal wills just because they had not been officially registered.”

Background

The European Commission has been consulting on a range of proposals to harmonise conflict of law rules at EU level in relation to divorce and succession and wills.

The UK can opt-in selectively to Justice and Home Affairs legislative measures under Title IV of the Treaty on European Union (Maastricht Treaty Protocol No 4).

During the inquiry the Committee gathered written evidence from relevant stakeholders representing the views of the Scottish legal profession, legal academics and members of the judiciary. Oral evidence was received from the Law Society of Scotland, Dr Janeen Carruthers and Dr Elizabeth Crawford, University of Glasgow, Scottish Executive and European Commission officials.

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