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.
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
-this would be contrary to public policy
-the judgment is irreconcilable with an earlier judgment
-the document which started the proceedings was not served in time.
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.
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.
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:
-Jurisdiction – what country should hear the case, whose laws should apply
-Recognition and enforcement
-how decisions made in one country are to be recognized and enforced in another
-Co-operation between central authorities
-Specific rules on child abduction and access rights.
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:
-Establishing and challenging paternity
-Judgments in relation to adoption
-The child's first and last names
-Age of majority
-Trusts and inheritance
-Measures taken following criminal infringements committed by children.
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.
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 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 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.