Guestblog by Brigitte Lhoest
With the aim of offering citizens in the European Union legal certainty in cross border family law situations the EU has increasingly come to define key aspects of jurisdiction, applicable law and recognition and enforcement of judgments on divorce, maintenance, and disputes over children, including international child abduction, and provided new frameworks for cross-national cooperation.
Guestblog by Brigitte Lhoest
International family law in Europe was historically an area predominantly regulated by national law. In today's world, where people are increasingly mobile, the number of families made up of citizens of different EU countries, or of EU citizens and third-country nationals, is increasing. There are currently around 16 million international couples in the EU. Inevitably when such families break up, family members, including children, often end up living in different countries, a situation which is fraught with difficulties from a family law point of view.
These difficulties include the questions: which courts have jurisdiction to hear a divorce application and which law is applicable to such a divorce; the issue of cross-border rights of access to children; the enforcement of maintenance obligations abroad, and in case of a death, succession issues.
With the aim of offering citizens in the European Union legal certainty in cross border family law situations the EU has increasingly come to define key aspects of jurisdiction, applicable law and recognition and enforcement of judgments on divorce, maintenance, and disputes over children, including international child abduction, and provided new frameworks for cross-national cooperation. The main EU Regulations comprise the following subjects:
EU rules in relation to enforcement of matrimonial orders (divorce, separation, annulment) are determined by Regulation 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (this Regulation is commonly known as the Brussels IIa Regulation). Since 1 March 2005, Brussels IIa is applicable in all EU member states with the sole exception of Denmark. A major difficulty was that Brussel IIa does not determine which substantive national law the courts or authorities should apply to rule on the divorce. To bridge this gap at the end of 2010, the EU thus went one step further and adopted Regulation No 1259/2010 on the law applicable to divorce and legal separation (this Regulation is commonly known as the Rome III Regulation). Rome III allows spouses to agree on the national law that should apply to their divorce. If the couple does not agree on the law, Rome III lays down rules enabling the court or authority to determine which national law should apply to the divorce. In this way, Rome III brings legal certainty to international couples wishing to divorce. Currently, Rome III applies in 16 Union countries: Austria, Belgium, Bulgaria, France, Germany, Greece, Hungary, Italy, Latvia, Lithuania, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain. Rome III will also apply in Estonia as of February 2018. Union countries that do not participate in Rome III continue to apply their own rules to determine which national law should apply to a divorce.
Besides the separation of the spouses, a divorce will lead to a reorganization of the relationship between the spouses and with any children they may have in common. It will also lead to a division of the assets owned in common by the spouses and, if necessary, to the payment of a contribution or maintenance by one spouse to the other or to their children. The EU therefore recently has also adopted rules on all these aspects to clarify the property rights for international married couples or registered partnerships. These regulations will enable married international couples to choose the law that applies to their property in case of death or divorce. Moreover it will enhance legal certainty for registered partnerships with an international dimension, by submitting the joint property to the law of the country where the partnership was registered. Regulation No 1103/2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and Regulation 1104/2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of the property consequences of registered partnerships will apply from the 29 the of January 2019 in a group of 17 Member States; Sweden, Belgium, Greece, Croatia, Slovenia, Spain, France, Portugal, Italy, Malta, Luxembourg, Germany, the Czech Republic, the Netherlands, Austria, Bulgaria and Finland. Union countries that do not participate in these Regulations continue to apply their own rules. The Regulations do not harmonize or change any of the substantive national law on marriage or registered partnerships.
Regulation 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations finally governs which courts have jurisdiction and which law is applicable in questions about alimony (entry into force 18.6.2011). It further governs the recognition and enforcement of decisions. The Regulation is strongly aligned with the Hague Maintenance Convention (entry into force 1.8.2014) and the Hague Maintenance Protocol of 2007 (applicable since 18.6.2011).
The Brussel IIa Regulation 2201/2003 also determines the jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility. Brussel IIa applies to all decisions made by the courts of member states in matters of parental responsibility. Parental responsibility includes rights of custody and rights of access, guardianship, the placement of a child in a foster family or in institutional care. The parents need not be married to each other. They need not be the biological parents of the child in question. It is not confined to court judgments. It also applies to agreements between parents if such agreements are enforceable in the country where they were made. In general, such agreements can be turned into court rulings and thereby made enforceable.
Furthermore, recently the European Succession Regulation has been introduced. This regulation about applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession aims to make sure that: A given succession is treated coherently, by one single court applying one single law. The main rule is that the law of the last habitual residence is applicable but citizens are able to choose the law of their nationality to be applicable instead; parallel proceedings and conflicting judicial decisions are avoided; decisions relating to successions given in one EU country are recognized and enforced in other EU countries. With the exception of the United Kingdom, Northern-Ireland and Denmark all EU member states are bound by the Succession Regulation. The regulation is applicable since 17 August 2015.
The EU Regulations thus now gradually have become the main frame of reference in the member states regarding the rules of international family law. The advantage of this harmonization of the rules of conflict is that it brings legal certainty for all citizens of the EU through a coherent set of rules for identifying which country's court is responsible and which law will apply in family related questions. However, the withdrawal of the United Kingdom from the European Union will precipitate important change in the field of the growing unification of international European family law. As the UK was member of most of the regulations it will remain to be seen if and how the UK will implement the European rules in her national legislation. The Peace Palace will keep you posted on the consequences of the Brexit, and for further information recommends that you regularly consult the updates in the Research Guide on Brexit and the Research Guide on International Family Law.
- Boele-Woelki, K., Dethloff, N. and Gephart, W. (ed.), Family Law and Culture in Europe: Developments, Challenges and Opportunities, Cambridge; Antwerp; Portland: Intersentia, 2014.
- Harding, M., "The Harmonisation of Private International Law in Europe: Taking the New Character Out of Family Law", Journal of Private International Law, 7 (2011), No. 1, pp. 203-229.
- Kohler, C. und W. Pintens, "Entwicklungen im europäischen Personen- und Familienrecht 2015-2016", Zeitschrift fur das gesamte Familienrecht, 63 (2016), No. 18, pp. 1509-1523.
- Lauroba Lacasa, E. and et M. E. Ginebra Molins (ed.), Régimes matrimoniaux de participation aux acquêts et autres mécanismes participatifs entre époux en Europe, Paris: Société de législation comparée, 2016.
- Scherpe, J.M. (ed.), European Family Law, Cheltenham, UK, 2016.