Napoleon Bonaparte and family law:
invaDE Russia then onto AUSTRALIA
David Hodson
David Hodson
The International Family Law Group LLP
Hudson House
8 Tavistock Street
Covent Garden
London WC2E 7PP
07973 890648
©June 2013
(Statutory material: (c) Crown Copyright)
ABOUT THE SPEAKER AND AUTHOR
David Hodson is a family law dispute resolution specialist. He is a English solicitor (1978 and accredited 1996), mediator (1997), family arbitrator (2002), Deputy District Judge at the Principal Registry of the Family Division, High Court, London (1995) and an Australian (NSW) solicitor (2003) and mediator. He deals with complex family law cases, often with an international element.
He is practising in London and Surrey, England and Sydney, Australia. He is a partner and co-founder of The International Family Law Group LLP,
He was joint founder in 1995 of probably the world’s first metropolitan practice to combine family lawyers, mediators and counsellors and with an emphasis on a conciliatory and holistic approach. It was subsequently copied in many practices across the world. He is past chairman of the resolution/Solicitors Family Law Association's Financial Provision Reform Committee, Training Committee and Good Practice Committee and founder member of its International Committee. He is a member of The President’s International Committee. He is past vice chair of the UK College of Family Mediators, the umbrella organisation for family mediation. He is a member of the Chartered Institute of Arbitrators. He is co-author of “Divorce Reform: a Guide for Lawyers and Mediators”, “The Business of Family Law” “Guide to International Family Law” and consulting editor of “Family Law in Europe”. He is an Accredited Specialist (with portfolios in Substantial Assets and International Cases), a Fellow of the International Academy of Matrimonial Lawyers, a past trustee of Marriage Resource and member of the Family Law Section of the Law Council of Australia and a member of the Lawyers Christian Fellowship. He is chair of the Family Law Reform Group of the Centre for Social Justice
He has written and spoken extensively on family law including many conferences abroad. Some papers and articles can be found at his web site below.
He is the author of “The International Family Law Practice”, (Jordans 2012), probably the leading textbook on international family law, of which part of this is an extract. He was Family Law Commentator of the Year 2011 and is nominated International Family Lawyer of the Year 2013
The International Family Law Group LLPis a specialist law firm providing services to the international community as well as for purely national clients. iFLG has a special contract with the Legal Services Commission for child abduction work and is regularly instructed by the UK Government (Central Authority). It acts for international families, ex pats and others in respect of financial implications of relationship breakdown including forum shopping and international enforcement of orders. It receives instructions from foreign lawyers and, as accredited specialists, acts for clients of other law firms seeking their specialist experience.
iFLG is situated in Covent Garden near the Law Courts. Its mobile telephone accessible website includes valuable information, podcasts, a government approved child abduction questionnaire and formulae as a starting point for calculating fair financial settlements. It has emergency 24 hour contact arrangements. Contact at
Introduction
On 15 August, 1769 on the island of Corsica in the Mediterranean, for centuries a home to bandits and insurgents, a baby was born. He became one of the greatest military strategists and commanders of all time. Apart from Hitler, he was the only other person in history to have ruled over the European landmass. But it is not matters of warfare with which we are concerned here at this conference because we work according to very conciliatory and settlement orientated regimes! Napoleon also created a code of law which, apart from the rather disjointed sharia law, is the dominant form of law across the world, and specifically it is increasingly dominating common law countries such as Australia and England. In family law, it is already and will over the next decade be highly influential in the form and substance of our law and our work in our own countries. We disregard at our peril.
This baby boy may eventually have had to retreat ingloriously from Russia and go into exile. But his code of law is most definitely not in retreat. In warfare, victory over Napoleon only came about through of a coalition of nations and opponents. There needs to be a coalition of family law forces, otherwise our way of working in family law will meet our own Waterloo.
Over this next hour, I want us to stand back from our day-to-day work and look geographically, politically and legally at what is happening in family law across the world and what may well happen in the future in our careers and our practices. Australia may well have the benefit of the tyranny of distance. But it must be alert to what is happening in Europe and elsewhere. I had the incredible benefit of working for two years in family law in Sydney a decade ago. It was only in doing so that I was able to see with better perspective what was happening from afar. In England we are right in the middle of a battle between the common law discretionary approach and the civil law codification approach. What will it mean for Australia family law and family life? What does it mean for Australian family lawyers? What does it mean for international families with any connection with Australia? What does it mean for you? And in what ways crucially do we in the UK need Australia’s help.
Napoleon Bonaparte
Napoleon Bonaparte was born into a wealthy family originally from Genoa in Italy. He trained as an artillery officer in mainland France. With the outbreak of the French Revolution, he became friendly with Robespierre. He led Republican uprisings within France. He conquered Italy. He conquered Egypt and other parts of the eastern Mediterranean. In time, the French Revolution started running out of steam, and presumably nobility available for the guillotine. Napoleon staged a coup d’état and installed himself as first Consul, effectively first Minister of France. Five years later, after putting down an assassination attempt, he restored the hereditary monarchy and made himself the first Emperor of France. He led a series of successful campaigns against Austria. He then engaged in a series of conflicts, known predictably as the Napoleonic Wars, involving every major European power. He had a string of victories. France became the dominant force in continental Europe through warfare and extensive alliances and treaties.
He was not satisfied. He now over extended French military resources with the Peninsular War for the control of Iberia, taking on Spain, Portugal along with the United Kingdom and other allies. More crucially like all would be world dictators from Genghis Khan onwards, he invaded Russia. Technically he won. He seized control of Moscow, but lost with huge casualties leading eventually to a retreat in 1812. In October 1813 he lost the Battle of Leipzig against Russian, German and Swedish forces, the biggest world battle before First World War, and he was forced into exile on the island of Elba, in the Mediterranean.
Within a year he escaped, returned to power, gathered forces around him and was quite arguably unlucky to lose at the Battle of Waterloo, in Belgium in 1815, where the British forces under the Duke of Wellington only succeeded with last-minute assistance from German, Prussian cavalry. Napoleon spent the last years of his life under house arrest by the British on the island of St Helena, a piece of volcanic rock in the South Atlantic. He died in 1821.
In many of his victories he was vastly outnumbered. His campaigns are still regarded by military academics as some of the best in world history.
But the military and political successes would be of only historic interest if it were not for his initiative in respect of the French code of law, now known as the Napoleonic code.
If you are going to create a new system of law, you would do so at time when there was one country ruling the developed world with one language used in legal circles, old systems of law had become discredited and with new ideas of equality, liberty, fraternity and rights in law. Welcome to France and continental Europe in the early 19th century. The Napoleonic code of law is probably Napoleon's greatest legacy. For us as family lawyers from a very different tradition, the common law, the Napoleonic invasion continues. It is more powerful than ever it was in 1815
I will come back to Napoleon and his interesting love life, because after all we are family lawyers! I turn now to the Napoleonic code
Napoleonic code
In 1804 at the height of the French Revolution with its ideals of liberty and freedom, French law was still largely feudal with a patchwork of legislation and provisions with huge privileges for the aristocracy. There was no single set of laws. There were customary laws, privileges and special charters. Different laws were used in different parts of the country. It was uncertain and unclear; words you will hear again and again over the next hour.
After Napoleon came to power he set up a commission of jurists who prepared one code containing all of the law of the country. Originally the civil code of France in 1804, it was renamed the Napoleonic code in 1807. Crucially it was based on codification of Roman law. Australian and English law is not based on Roman law. The Napoleonic code was intended to make laws clearer and more accessible. It gave power to the legislature and took power away from the judiciary. Pre-revolution, the judges had been pro-aristocracy and favouredthe higher social classes and against the ordinary people. The Napoleonic code prohibited judges from deciding a case by introducing a new law. That should be an exercise of legislative, not judicial power. In theory at least, there is no case law in France, certainly as we would understand precedent case law in Australia and England. In practice there is a body of jurisprudence but it is subservient to the codified legislation.
If this was simply the law in France as a response to the French Revolution and its ideals, then this would be a history lesson. It is the worldwide influence which matters today in June 2013
The Napoleonic code was adopted in countries then occupied by France or connected by coalitions or treaties with France. This included Italy, the Netherlands, Spain, Portugal, Poland, much of Germany, and in effect most of Europe apart from Scandinavia and the UK. These mainland European countries were in the 17th, 18th and 19th centuriespart of the outward expansion from Europe around the world. France, Spain, Portugal, the Netherlands, Italy and Germany had many dominions around the world. Where the 19th century map of the world was not coloured red with the British Empire, it adopted the Napoleonic code! So this form of law and what became the content of law passed around the world. Even after some countries became British or notionally British protected including after the First and Second World Wars, they sometimes held onto the Napoleonic system of law.
Germany was resistant to the French but nevertheless received the Napoleonic code, subsequently replacing it with a Germanic code significantly based on the Napoleonic code and in some ways indistinguishable. Many Eastern European countries in the twentieth century adopted the Germanic code and therefore indirectly the Napoleonic code.
Across the Middle East and before the growth of Islamic fundamentalism in the last 50 years, countries such as Egypt adopted a mixed system with strong influences from the Napoleonic code. I was in Dubai a year ago, meeting local family lawyers and mediators. In the family law of Dubai today, it is of course Islamic law but based on a codified form from Napoleonic code. The same applies across the Persian Gulf with influences on the law in Saudi Arabia itself.
With the Spanish and Portuguese influence, it has spread extensively across Latin America and South America. By way of example, the civil codes of Chile and Puerto Rico are very similar to elements of the Napoleonic code.
Even in the US, Louisiana has elements directly influenced from Napoleonic code with Roman and Spanish civil traditions despite being surrounded by Anglo-Saxon common-law jurisdictions in the US. In Canada, Quebec inevitably follows the French code.
Across Europe, it is really only the UK and Republic of Ireland which operate the common law, although the Scandinavian countries are also not strongly influenced. Curiously, Scotland is significantly closer to France in its legal roots, being almost a civil law jurisdiction notwithstanding the Battle of Bannockburn in 1314 and the Act of Union in 1707. Stand by for the independence referendum of September 2014 when the ghosts of Braveheart and Bonnie Prince Charlie come rattling down from the glens!
Outside of Europe, the common law tradition is found primarily in the former British Commonwealth countries and places where the US legal systems have influence. We must be clear: our form of law and legal process is very much in the global minority, after the Napoleonic code and sharia law
So what has been the consequence?
In the past 15 years or so but accelerating fast, the European Union with a population of 500 million witha Parliament with directly elected MPs, a huge civil service and colossal budgethas adopted a specific policy of creating as much as possible one combined European area of civil justice. We have free movement of labour across Europe, families free to join workers, no significant cross-border differences in trading and protections, with common policies on agriculture and now many other areas of life, so this is an understandable and indeed commendable objective.
The problem arises that the common justice system being adopted is that of the civil law, from the Napoleonic code. Brussels has poured forth a series of laws including in family law which have been born out of the Napoleonic code civil law. As Brussels has grown in power and dominance, they have increasingly intended their laws to have worldwide affect. No longer do they limit themselves to cases between EU countries. They now impose directly upon every EU country laws to govern all cases involving any EU state with any other country in the world. Anglo Australian cases from the English end are now governed by EU law, not necessarily English law. The EU will not allow member states to negotiate arrangements with non EU states if it may have an impact on existing EU laws. For example, the UK is legally and politically incompetent to enter into a similar family law arrangement with Australia as you did last this year with New Zealand.
I say again that we cannot underestimate the ambition of the EU both generally and for us specifically in family law, stretching well beyond EU cross-border cases and beyond the EU borders. Even countries like Australia which stoically hold out against invasive foreign forcesdirectly in your legislation will find strong influences arriving through the back door of trends, themes, client expectations and in many other ways.
England is regarded as a troublemaker in Europe. We are outside the euro. We alone in Europe, courtesy of Maggie Thatcher,have an opt out from some EU legislation. We are probably the strongest financial centre in Europe. People from around the world choose to litigate before the English courts, whether libel, patent disputes, commercial claims or divorce. They do so because of English law not EU law. We have very strong and important links with the US and other places around the world, including Australia, where the EU is not strong. We actively support The Hague Conference initiatives. We are solidly and enthusiastically a common law jurisdiction. But bit by bit we are losing our common law distinctive. In part we are openly surrendering. In part the EU is imposing its own laws against our wishes. We have mostly lost our legal independence
My purpose is to show how this is happening and to warn you
Divorce jurisdiction
Our legislation is found in the Matrimonial Causes Act 1973. Although the UK Parliament passed no-fault divorce legislation in 1996, it has not been brought into force nor will be
It is a mixed fault and non-fault system. The only basis of divorce is irretrievable breakdown but this can only be shown in one of five ways: adultery, unreasonable behaviour, desertion, separation for two years with consent or separation for five years with no consent needed. About 70% of divorces are on the basis of the two fault grounds, anecdotally because the parties want to get on with the divorce rather than wait two years, the so-called civilised divorce. Also approximately 70% of petitioners are women; not necessarily because men cause the breakdown of a marriage but because women seek assistance from the court in ancillary financial claims.