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Divorce without borders
Jul 31st 2008
From The Economist print edition
A simpler way to part ways
SHE was French; he was English; they had just moved to London from Paris. When he found out about her affair, she begged for a reconciliation. He was more ruthless: the same afternoon, he filed for divorce in France, one of the stingiest jurisdictions in Europe for the non-earning spouse and where adultery affects the court’s ruling. Had she filed first in England her conduct would have been irrelevant, and she would have had a good chance of a large share of the marital assets, and even maintenance for life.
International divorce is full of such dramas and anomalies, so the natural response of policymakers is to try to make things simpler and more predictable. But the biggest attempt in recent years to do just that, in a European agreement called Rome III, has just been shelved. Instead, several EU countries are now pressing ahead with their own harmonisation deal. Many wonder if it will work any better.
At issue is the vexed question of which country’s law applies to the break-up of a mixed marriage. The spouses may live long-term in a third country and be temporarily working in a fourth. The worst way to sort that out is with expensive legal battles in multiple jurisdictions.
The main principle at present is that the first court to be approached hears the case. Introduced in 2001, this practice has worked well in preventing international legal battles, but has made couples much more trigger-happy, because the spouse who hesitates in order to save a troubled marriage may lose a huge amount of money. Rome III aimed to remove the incentive to go to court quickly. Instead, courts in any EU country would automatically apply the local law that had chiefly governed the marriage. This approach is already in force in countries such as the Netherlands. A couple that moved there and sought divorce having spent most of the marriage in France, say, would find a Dutch court dividing assets and handling child custody according to French law.
That works fine among continental European countries where legal systems, based on Roman law, leave little role for precedent or the judge’s discretion. You can look up the rules on a website and apply them. But it is anathema in places such as England, where the system favours a thorough (and often expensive) investigation of the details of each case, and then lets judges decide according to previous cases and English law.
Another snag is that what may suit middle-class expatriates in Brussels (who just happened to be the people drafting Rome III) may not suit, for example, a mixed marriage that has mainly been based in a country, perhaps not even an EU member, with a sharply different divorce law. Swedish politicians don’t like the idea that their courts would be asked to enforce marriage laws based on, say, Islamic sharia.
The threat of vetoes from Sweden and like-minded countries has blocked Rome III. But a group of nine countries, led by Spain and France, is going ahead. They are resorting to a provision in EU rules—never before invoked—called “enhanced co-operation”. This sets a precedent for a “multi-speed” Europe in which like-minded countries are allowed to move towards greater integration, rather than seeking a “big-bang” binding treaty that scoops up the willing and unwilling alike. Some countries worry that using enhanced co-operation will create unmanageable layers of complexity, with EU law replaced by multiple ad hoc agreements.
The real lesson may be that Rome III was just too ambitious. A more modest but useful goal would be simply to clarify the factors that determine which court hears a divorce, and then let that court apply its own law. David Hodson, a British expert, proposes an international deal that would start by giving greatest weight to any prenuptial agreement, followed by long-term residency, and then take into account other factors such as nationality. That would then make it easier to end marriages amicably, with mediation and out-of-court agreement, rather than a race to start the beastly business of litigation.
Murder, caviar and why our relations with a thuggish Kremlin are at their worst since the Cold War
By Edward Lucas
Gordon Brown's personal relationships with foreign leaders are not his strong suit. He is regularly out-dazzled by Nicolas Sarkozy and outmanoeuvred by George Bush.
But in his meeting with Russia's new president, Dmitry Medvedev, this week, he showed commendable - and rare - resolve in withstanding the Kremlin's trademark mixture of bullying and blandishments.
In the run-up to the meeting on the fringes of the G8 summit in Japan, Medvedev made it clear that he was prepared to thaw what has become a new Cold War between the UK and Russia - but only if Britain met him half-way. Brown refused.
Cool reception: Russia's president Medvedev and Gordon Brown shake hands but the bodly language betrays suspicion
Tony Blair may have kow-towed to Vladimir Putin, who made hollow offers of friendship. But Mr Brown has proved himself determined to stand up to an increasingly bellicose, and wily, Russia, which is possibly why the Kremlin retaliated by yesterday naming a top embassy official as a British spy.
Before this week's get-together, the siren voices of appeasement in Britain were crooning at top volume. For most British exporters, trade with Russia is booming.
Moreover, London is the place where Russian companies like to list their shares, sell their bonds and bank their profits, and a phalanx of pin-striped admirers are profiting richly from that. It is in British public schools that Russia's elite educate their children and it is in Britain's high society that they find the glitz and respectability they crave.
So in the City, in big business, and in the political and social elites so lavishly courted by Russia's spin-doctors, the hope was that with a new man in the Kremlin, perhaps Downing Street would get things 'in perspective' and put past political difficulties aside.
In other words, what does murder matter when profits are at stake? Who cares that Alexander Litvinenko was a British citizen when he was poisoned in November 2006? Who cares that the prime suspect in that murder became a celebrated Russian politician?
Who cares that another Kremlin assassin was caught stalking a British resident, Boris Berezovsky, through the streets of London last summer? Who cares that Britain's outgoing ambassador in Moscow, Sir Anthony Brenton, was mercilessly hounded by the thugs of Nashi, the 'Putin Youth' movement?
And who cares that the Russian staff of the British Council in St Petersburg were hauled from their beds in the middle of the night for interrogation?
Luckily for us, and for our brave allies in Eastern Europe who live in the shadow of a resurgent Russia and have been forced to look for security under the umbrella of the proposed U.S. missile defence shield, Mr Brown cared.
The view from Downing Street is that if Russian-British relations are indeed at their worst since the days of the Cold War, that's their fault, not ours.
There are those in Britain who refuse to believe this. With champagne, caviar and cash, the Kremlin is infiltrating Britain and buying friends and influencing people in a way that would have been unimaginable during the last Cold War.
But for now at least, this seduction only goes so far. Stiffening Britain's backbone are the security and intelligence services, usually known by their unofficial titles, MI5 and MI6.
Jonathan Evans, the sharp-witted director of MI5, has authorised an unprecedented level of semi-official briefing on the issue and Russia's rampant espionage has infuriated his hard-pressed spycatchers. Russia is now rated the third biggest security threat facing Britain, beaten only by the threat from Islamic terrorists and rogue states.
On BBC2's Newsnight this week, a senior security official gave a remarkably crisp public quotation, blaming the Kremlin for the Litvinenko murder. Short of hanging a banner from his top-floor office in the hulking MI5 headquarters at Thames House, Mr Evans's message could not have been clearer.
It is the same story at MI6, which for years has battled with the Foreign Office's supine and gullible attitude towards the Kremlin. At their green-glass headquarters across the Thames, the veteran Cold War spooks at last feel vindicated.
They warned back in the 1990s, when Russia was supposedly democratic, that the KGB was still up to its old tricks. They rang alarm bells when Mr Putin, a KGB veteran, took power. They highlighted the dangerous overlap between the business, political and secret-police worlds in the new Russia. Now they have been proved right.
And Britain's top spymaster, Alex Allan, has been stricken down by a mysterious illness that has left him in a coma. It is almost certainly just a tragic coincidence. But in some minds, the timing, just before the Brown-Medvedev summit, gave it a potentially sinister twist.
After all, what better way of warning those who defend Britain's interests not to confront Russia than to strike down their spy boss with an untraceable, near-lethal poison?
Nobody in the world of shadows wants to entertain that notion. But neither will they deny that the old KGB - chiefly the FSB, its sinister successor - has the ruthlessness, and the technology, to do such a thing if it wanted.
It would be a gross exaggeration to say that Britain's Russia-watchers are living in fear. But we are all aware that the Moscow authorities now have the right (under Russian law) to order the execution of ' extremists' at home and abroad.
Even some British businesses are beginning to concede that Russia isn't so rosy after all. Britain's top oil-men pooh-poohed Tony Blair's warning about betting too heavily on Russia last year.
Shell has lost the majority of its huge Sakhalin venture, and BP is being driven out of its joint venture with TNK, a Russian firm whose owners' brains are matched only by their muscles.
Outrageous though the tactics used against it have been, I have little sympathy for BP. The company has been burned before by a joint venture with the same bunch of people in the 1990s - and its shareholders should be justifiably aggrieved that the managers they employ have failed to learn from that lesson.
But the British Government is right not to get too closely involved in the case - not least because one factor may be an attempt to soften Britain's position on other issues, such as the Litvinenko murder.
Russia may be failing in its attempt to browbeat Britain, but it is doing well elsewhere, particularly in continental Europe, where the ruthless use of bribes and energy blackmail have corralled countries such as Germany, France and Italy into the Kremlin camp.
Both the European Union and Nato now stand pitifully divided. The business interests of their big members leave them unable to defend countries that are at risk from Russia. Coupled with a Russophile French presidency of the EU for the next six months, the sun is shining on the Kremlin - and its denizens are making all the hay they can.
No wonder that countries such as the Czech Republic and Poland believe only a direct relationship with America can guarantee their security. And no wonder Russia is reacting so toughly to the incipient deal on American missile-defence bases (aimed to deter Iran, not Russia) in those countries.
It said this week that it would respond with 'military-technical means' (new weapons) if the American plan goes ahead.
The bleak truth is that nothing in Russia has changed. The diminutive, softly-spoken Mr Medvedev may look and sound different to his thuggish, foul-mouthed ex-KGB predecessor, Vladimir Putin. But his politics are the same: what's mine is mine, what's yours is negotiable.
The political system is still closed to competition, corruption is rampant, and the economy is a shambles outside the big cities. This incompetent, but menacing, regime is bad for both Russia and Europe. But only Britain and a handful of allies seem to be prepared to do anything about it.
