DIVORCE IN EUROPE
The EU and Family Law
The
EU has a limited role in family law matters. Each individual member
state has its own rules about separation, divorce, maintenance of
spouses and children, custody and guardianship and other family law
matters. The role of the EU is mainly concerned with ensuring that
decisions made in one country can be implemented in another. It also
has a role in trying to establish which country has jurisdiction to
hear a particular case. So
far, it has not made any rules about which country’s laws should apply
in particular cases. In effect, the EU does not have rules which
govern, for example, who is entitled to have custody or access but it
does have rules which try to ensure that custody and access orders made
in one country can be put into effect in another. EU rules in relation
to enforcement of matrimonial orders (divorce, separation, annulment)
and some parental responsibility orders (mainly custody and access)
came into effect on 1 March 2001. A new regulation on matrimonial
matters and parental responsibility came into effect on 1 March 2005.
This did not involve any significant change in the rules on matrimonial
matters but it did involve changes in the rules governing parental
responsibility. EU rules in relation to the enforcement of maintenance
orders came into effect on 1 March 2002. These rules are very complex
and here we give a summary of the current EU rules in the family law
area. Maintenance The
recognition and enforcement of maintenance orders in EU member states
is governed by Regulation 44/2001 of 22 December 2000 on jurisdiction
and the recognition and enforcement of judgments in civil and
commercial matters. This regulation is known as “Brussels I” and has
been in effect since 1 March 2002. It replaced the 1968 Brussels
Convention in all the EU states except Denmark. That Convention
continues to apply to other countries. The
Regulation applies in civil and commercial matters and has detailed
rules in a number of areas including consumer contracts and individual
employment contracts. It does not cover a range of matters including
taxation, the status or legal capacity of people, matrimonial matters,
wills and succession and social security. Here
we are only concerned with its role in relation to family law. It does
apply to maintenance orders in family law cases. It deals with
jurisdiction (i.e. which court can hear the case) and enforcement of
maintenance orders. It provides that, if you are a maintenance debtor
(you are owed money under a maintenance order), you may sue the
maintenance creditor (the person who owes you money) in the member
state where you are domiciled or habitually resident if the maintenance
creditor is domiciled in another member state. Maintenance
matters may also be decided by the court which is dealing with divorce
or separation proceedings, provided its jurisdiction to do that is not
based only on the nationality of one of the parties. A
judgment on maintenance given in one member state is enforceable in the
other member states – a party may ask for its enforcement and get a
declaration that it is enforceable. The court must declare it
enforceable unless In effect, the foreign judgment is enforceable virtually automatically but it does require a court procedure. Enforcement Order for Uncontested Claims Regulation
805/2004 of 21 April 2004 creating a European Enforcement Order for
uncontested claims will come into effect on 21 October 2005. This will
apply to judgments issued after it comes into effect. It provides that
uncontested orders – including maintenance orders – may be directly
enforced in another member state without having to go through another
judicial process in that state. A judgment that has been certified as a
European Enforcement Order by the court of one member state must be
enforced as if it were given in the member state in which enforcement
is sought. Divorce, Separation and Annulment Regulation
1347/2000 of 29 May 2000 (called the “Brussels II Regulation”) which
came into effect on 1 March 2001 sets out the rules on jurisdiction and
the recognition and enforcement of judgments in matrimonial matters and
in matters of parental responsibility for children of both spouses.
This regulation has now been replaced by Regulation 2201/2003 (“the new
Brussels II Regulation” or the “Brussels
II bis”) for cases arising on or after 1 March 2005 but its rules in
relation to matrimonial matters are virtually unchanged. “Matrimonial
matters” includes divorce, annulment and legal separation but does not
include, for example, the property consequences of marriage and the
grounds for divorce. Jurisdiction The
Regulation does not set out one general rule about jurisdiction in
matrimonial matters. It provides that you may take a matrimonial action
in the courts of the member state where one or both of you are or were
habitually resident or the member state of your common nationality or
your common domicile. This means, of course, that it may be possible to
take the action in a number of states. The Regulation provides that
once proceedings have started in a particular member state, other
states must refuse jurisdiction. The
Regulation does not deal with the question of which law applies. This
is a matter for the member state that has jurisdiction. For example,
most countries other than Ireland and the UK apply the law of the
country of habitual residence of the parties while Ireland and the UK
apply the law of the country of domicile. Recognition of Decisions The Regulation provides that a decision on a matrimonial matter made in one member state must be
recognized and enforced in the other states without any special
procedures. You do not have to go to court to have it recognized.
However, any interested party may ask the court in the other member
state not to recognise the decision. The court may refuse to recognize
the decision if such recognition is clearly contrary to public policy
or if the decision contradicts another decision or if there were
certain procedural defects – in particular if one party was not
properly served with the relevant papers and did not put in an
appearance as a result. The court is not entitled to hear an appeal
against the decision. The Law Applicable to International Divorces The
Commission has issued a Green Paper and launched a public consultation
on the applicable law and jurisdiction in divorce matters. As explained
above, current EU law does not determine what law applies when an
application for divorce is being considered. For example, if an Irish
person living in the UK wants to divorce a German spouse who is living
in France, which national law applies? At present, the different member
states have different rules for answering this. The Green Paper
addresses possible solutions to the problem. Parental Responsibility Regulation
2201/2003 sets out the rules on jurisdiction and the recognition and
enforcement of judgments in matters of parental responsibility for
cases arising on or after 1 March 2005. This regulation extends
Regulation 1347/2000 which applied from 1 March 2001. The earlier
regulation only applies to judgments on parental responsibility that
were issued in the course of matrimonial proceedings and it only
applies to judgments in relation to the children of both spouses. The
new regulation has detailed provisions dealing with cases which were
started before 1 March 2005 but not decided until after that date and
cases which were decided before that date but for which there are now
different enforcement mechanisms available. For example, if, before 1
March 2005, you had an order, under the old regulation, giving you
access to your children, you may now use the new enforcement procedures
to implement that order. The following is a description of the new
regulation. What the Regulation Covers The regulation covers the following aspects 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 regulation does not apply to proceedings which
involve: The
regulation also applies to certain measures concerning the child’s
property if they are related to the protection of the child. Measures
that relate to the child’s property, but which do not concern the
protection of the child, are covered by the Brussels I Regulation. It
is for the judge to assess in the individual case whether a measure
relating to the child’s property concerns the protection of the child
or not. Jurisdiction The
general rule is that the court which has jurisdiction in matters of
parental responsibility is the court of the country where the child is
habitually resident. If the child has lawfully changed country of
residence and the previous country had already given a judgment on
parental responsibility, then that court continues to have
jurisdiction. It is possible to have the case transferred to the new
country of residence if certain conditions are met and if it would be
in the best interests of the child. The
parents may agree to have the question of parental responsibility
decided in the court which has jurisdiction on the matrimonial matter
or may agree to have the case heard by the court of a country with
which the child has a close connection (for example, nationality). If
the child’s habitual residence cannot be established, then the member
state in which the child is present has jurisdiction. In certain
circumstances, the court which has jurisdiction may refer the case to
another court if that other court is better placed to hear the case and
this is in the best interests of the child. This could arise, for
example, if the child’s habitual residence has changed. There are time
limits on this procedure. The regulation also includes rules on what is
to happen if the proceedings are started in more than one member state. Co-operation between National Authorities The
Regulation creates a system of co-operation between central authorities
of the member states. These authorities are obliged to facilitate
communications between the courts of the relevant countries and must
facilitate agreements between parents through mediation or other means. Recognition and Enforcement Judgments
given in one member state must be recognized and enforced in another
member state. The court in the other member state may refuse to
recognize the order on the same basis as applies to matrimonial orders
and also on the basis that the child was not given an opportunity to be
heard or a person claiming that the judgment infringes his or her
parental responsibility was not given the opportunity to be heard. Child Abduction Child
abduction is the unlawful removal or retention of a child. If you have
custody and your child is abducted to another member state, you may
apply to that state for the return of the child. The courts of the
member state to which the child has been abducted can only refuse
return of the child in limited circumstances – for example, if there
are not adequate safeguards to ensure that there is no serious risk
that return would expose the child to harm. Access Rights Access
rights are directly enforceable in other member states. This means that
it is not necessary to go to court to declare that they are enforceable
if the court which issued the orders also issues the required
certificate. (This certificate guarantees that procedural safeguards
have been respected – for example, that all parties had an opportunity
to be heard, the child had the opportunity to be heard if that was
appropriate.) It does not matter who holds the access rights – it is
usually a parent but can be a grandparent or other family member
depending on the national rules involved. The certificate means that
the judgment is treated in the new member state as if it were a
judgment of that state.
