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Journal of Private International Law Volume 7, 2011 - Issue 1
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Original Articles

The Harmonisation of Private International Law in Europe: Taking the Character out of Family Law?

Maebh Harding PhD, Senior Lecturer in Law, University of Portsmouth.
Pages 203-229 | Published online: 07 May 2015

  • Regulation 2201/2003 EC [2003] OJ L338/1.
  • Regulation 4/2009 EC [2008] OJ L7/1.
  • Regulation 1259/2010 EU [2010] OJ L343/10.
  • Green Paper on Conflicts of Laws in Matters Concerning Matrimonial Property Regimes, Including the Question of Jurisdiction and Mutual recognition of 17 July 2006; COM(2006) 400 final.
  • A choice of different matrimonial property regimes has existed since 1804 under the French Civil Code and 1900 under the German Civil Code.
  • Implemented by s 5 of the Family Law (Divorce) Act 1996.
  • S 20 of the Family Law (Divorce) Act 1996 sets out individual factors which must be taken into account by the Irish court before deciding to make any order of ancillary relief.
  • See RG v GG [2005] IEHC 202.
  • S 10 of the Matrimonial Causes Act 1973.
  • In petitions based solely on five years of separation, s 5 of the Matrimonial Causes Act 1973 permits the respondent to oppose its grant “on the ground that the dissolution of the marriage will result in grave financial or other hardship to him and that it would in all the circumstances be wrong to dissolve the marriage”.
  • 11 See eg France and Germany.
  • S 33A of the Matrimonial Causes Act 1973.
  • Part II of the Matrimonial Causes Act 1973.
  • See eg German law where agreements on support (§ 1585c German Civil Code) and property (§ 1408 para 1 German Civil Code) are binding and French law where agreements on property are binding (Art 1387 of the French Civil Code).
  • S 16(1)(b), Family Law (Scotland) Act 1985.
  • S 20 (3) Family Law (Divorce) Act 1996; MK v JK [2003] 1 IR 326.
  • [2005] 2 IR 418.
  • Hyman v Hyman [1929] AC 601, HL.
  • S 21(2)(c) Matrimonial Causes Act 1973.
  • [2010] UKSC 42.
  • Ibid, [62].
  • Ibid, [82].
  • In Radmacher the Supreme Court approved payments to the husband to the tune of nearly £5m to allow his children to have the same standard of living until they reached 25. Ibid, [112].
  • See Report of the Study Group on Pre-nuptial Agreements (2007) http://www.inis.gov.ie/en/JELR/PrenupRpt.pdf/Files/PrenupRpt.pdf, accessed on 2 February 2011.
  • 25 Minutes of Agreement are routinely used in many divorce cases.
  • S 16(1)(b) Family Law (Scotland) Act 1985.
  • Art41.3.1° of the Irish Constitution still requires the state to guard with special care the institution of marriage, on which the family is founded, and to protect it against attack.
  • 28 As reflected in the right to marry under Art 12 of the European Convention of Human Rights.
  • England and Wales: s 23 of the Matrimonial Causes Act 1973. Ireland: s 13 of the Family Law (Divorce) Act 1996 allows for the making of periodical payments orders, secured periodical payments orders and lump sum orders; s 9 of the Irish Family Law Act 1995 to “adjust” the property rights of spouses on the grant of a judicial separation by reference to a requirement for fairness.
  • S 25(1) Matrimonial Causes Act 1973.
  • Ibid, s 25A(1)).
  • [2006] UKHL 24, [2006] 2 AC 618.
  • Charman v Charman [2007] EWCA Civ 503, [64]–[65].
  • Radmacher v Granatino [2010] UKSC 42.
  • McCartney v Mills McCartney [2008] EWHC 401 (Fam), [306].
  • Subject to consideration of the factors outlined in s 20(2)(a)–(l) of the Family Law (Divorce) Act 1996.
  • MF v AF [2008] IEHC 164.
  • [2007] IEHC 484.
  • T v T [2002] 3 IR 334 [363]–[364], Keane CJ.
  • SD v BD [2005] IEHC 331.
  • S 9(1)(a) Family Law (Scotland) Act 1985.
  • S 10(1) Family Law (Scotland) Act 1985.
  • Art 1387 French Civil Code.
  • Arts 270–280–1 French Civil Code.
  • Matrimonial Causes Act 1973, s 28A(1).
  • S 9(1)(c), (d) and (e), Family Law (Scotland) Act 1985.
  • Even in the case of death, a secured maintenance order, made pursuant to s 13(1)(b) of the Family Law (Divorce) Act 1996, will ensure that the liability continues.
  • S 13(5), Family Law (Divorce) Act 1996 states that a periodical payment order will automatically cease to have effect on the date of the remarriage of the spouse in whose favour it is made. S 22, Family Law (Divorce) Act 1996 allows an application to be made to the court for variation of any continuing order on remarriage of either spouse.
  • Any order made in respect of maintenance on divorce may be varied pursuant to the provisions of s 22 of the Family Law (Divorce) Act 1996, with the exception of a lump sum payment which is not being paid in instalments; JCN v RTN [1999] 1 JIC 1506. S 14 of the Divorce Act allows the court on granting a decree of divorce or at any time during the lifetime of the respondent spouse to make a property adjustment order; AK v JK [2008] IEHC 341.
  • [1997] OJ C340/1.
  • [2008] OJ C115/47.
  • Reg 44/2001 EC [2001] OJ L12/1.
  • Ibid, Art 2.
  • Reg 4/2009 EC [2008] OJ L7/1. This regulation came into force on 30 January 2009 and will apply from 18 June 2011.
  • This was identified as one of the main problems with the functioning of the regulation. See M Hellner, “The Maintenance Regulation: A Critical Assessment of the Commission's Proposal”, in K Boele-Woelki and T Sverdrup (eds), European Challenges in Contemporary Family Law (European Family Law, Antwerp, Intersentia, 2008), 347.
  • 56 Although this was in the original proposal.
  • Supra n 54, Art 15.
  • Council Decision 2009/941 EC [2009] OJ L331/17.
  • Supra n 54, Art 17.
  • Ibid, Art 26.
  • As the EU has signed and ratified the Hague Protocol this will mean that only Denmark and the UK remain outside it. Supra n 58, recitals (11)–(12) See P Beaumont, “International Family Law in Europe – The Maintenance Project, the Hague Conference and the EC: A Triumph of Reverse Subsidiarity” (2009) 73 RabelsZ Bd 509, 545.
  • P Bremner, “The EU Maintenance Regulation: A Qualified Success for European Family Law” (2010) 2 King's Student Law Review 5.
  • Reg 1347/2000 EC [2000] OJ L160/30.
  • Reg 2201/2003 EC [2003] OJ L338/1 added a range of rules on the mutual enforcement of judgments on the rights of access to children. There was no amendment to the measures on nullity, divorce and separation although the numbering of the articles has changed. Annex V of Reg 2201/2003 showing correspondence between articles of Brussels II and Brussels IIbis. For the sake of clarity the Brussels IIbis article numbers will be used throughout.
  • Reg 2201/2003, Art 1.
  • A Borrás, “From Brussels II to Brussels II bis and Further”, in K Boele-Woelki and C Gonzalez Beilfuss (eds), Brussels II bis: Its Impact and Application in the Member States (Antwerp, Intersentia, 2007).
  • Reg 2201/2003, Art 3(c). Cf Moore, infra n 111.
  • Reg 1259/2010 EU [2010] OJ L343/10.
  • Proposal for a Council Regulation Amending Regulation (EC) No 2201/2003 as Regards Jurisdiction and Introducing Rules Concerning Applicable Law in Matrimonial Matters. Brussels 17 July 2006 COM(2006) 399 final.
  • Ibid, 4.
  • Letter to the European Commission dated 26 September 2006: Kamerstukken 2006–2007 30671 E and no 5 cited in T de Boer, “The Second Revision of the Brussels II Regulation: Jurisdiction and Applicable Law”, in Boele-Woelki and Sverdrup, supra n 55.
  • Council Decision of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation [2010/405/EU] OJ L189/12.
  • Greece withdrew its request in 2010.
  • 74 Rome III will only cover divorce and legal separation and does not apply to annulment (Art 1).
  • Green paper on Conflict of Laws in Matters Concerning Matrimonial Property (SEC(2006) 952) COM(2006) 400 final.
  • Ibid.
  • Ireland and Malta did not respond: http://ec.europa.eu/civiljustice/news/docs/summary_answers_com_2006_400_en.pdf, accessed on 2 February 2011.
  • Ibid.
  • Ibid, 2. No mention was made of Ireland or Scotland
  • 80 Ch I.
  • Reg 1347/2000, Recital (4).
  • Proposal for a Council Regulation Amending Regulation (EC) No 2201/2003 as Regards Jurisdiction and Introducing Rules Concerning Applicable Law in Matrimonial Matters. Brussels 17 July 2006 COM(2006) 399 final, 3.
  • The public consultation and the impact assessment carried out at the time of the Commission's July 2006 proposal have demonstrated that the scale of the problems addressed by the present proposal is significant and concerns tens of thousands of citizens each year, although it is not clear if 100% of these citizens suffer problems: http://eur-lex.europa.eu/LexUriServ/LexUriS-erv.do?uri=CELEX:52006SC0950:EN:NOT, accessed on 2 February 2011.
  • Supra, n 75.
  • Supra, n 83.
  • K Boele-Woelki, Unifying and Harmonizing Substantive Law and Role of Conflicts of Law (The Hague, Pocketbooks of the Hague Academy of International Law, Martinus Nijhoff, 2010), [3.1.4].
  • See further D Bradley, “A Family Law for Europe? Sovereignty, Political Economy and Legitimation,” (2004) 4 Global Jurist Frontiers.
  • 88 Reg 44/2001, Art 1.2(a).
  • Ibid, Art 5.2.
  • Reg 2201/2003, Recital (8).
  • For example, the duty and scope of family maintenance is described in §§ 1360–60b of the German Civil Code, where as matrimonial property regimes are in an entirely different section (§§ 1363 et seq German Civil Code for the community of accrued gains, in §§ 1415 et seq German Civil Code for the community of property and in §1414 German Civil Code with regard to the separation of property).
  • A type of settlement of the matrimonial home until the children have reached adulthood. See Mesher v Mesher [1980] 1 All ER 126.
  • C-220/95 Boogaard v Laumen [1997] ECR I-1147, [1997] QB 759.
  • Ibid, [15].
  • Ibid, [41].
  • Ibid, [62] AG Opinion.
  • Ibid, [43].
  • Ibid, [22].
  • T v T [2002] 3 IR 334 [363]–[364], Keane CJ [368]–[369].
  • 100 Or national conflict-of-law rules if the Member State has not opted in.
  • 101 The Maintenance regulation, Rome III and the proposed Rome I V.
  • A Fiorini, “Rome III – A Step Too Far in the Europeanisation of Private International Law?” (2008) 22 International Journal of Law, Policy and the Family 178.
  • Reg 1259/2010, Art 4.
  • Protocol on the Law Applicable to Maintenance Obligations (Concluded 23 November 2007): http://www.hcch.net/upload/conventions/txt39en.pdf, accessed on 2 February 2011.
  • Whether Art 5 will apply to registered partners or long-term cohabitees is debatable and may depend on where the case is heard, although within the EU it will ultimately be decided by the ECJ, see Beaumont, supra n 61, 542.
  • K Kroll, “Unification of Conflicts of Laws in Europe”, in Boele-Woelki and Sverdrup, supra n 55, 390.
  • 107 Reg 4/2009, Art 8.
  • M Hellner, “The Maintenance Regulation: A Critical Assessment of the Commission's proposal”, in Boele-Woelki and Sverdrup, supra n 55, 355.
  • Ch 3, supra nn 79–80.
  • Fiorini, supra n 102.
  • [2007] EWCA Civ 361.
  • Ibid, [19].
  • Ibid, [21].
  • Ibid, [88]–[90].
  • Ibid, [94].
  • MP v PR [2005] 2 IR 618 (IEHC).
  • Ibid, 639.
  • R Aylward, Marriage, Pre-Nuptial Agreements and Irish Law (Dublin, TCD, 2006), 183.
  • G Shannon, “The Impact and Application of the Brussels II bis Regulation in Ireland”, in Boele-Woelki and Gonzalez Beilfuss, supra n 66, 159.
  • [2010] UKSC 13.
  • Ibid, [57]
  • Ibid.
  • Ibid, [72].
  • Moore, supra n 111, [110].
  • Radmacher v Grantino [2009] EWCA Civ 649 [11].
  • Reg 1259/2010, Recital (18).
  • Supra n 69, 4.
  • Reg 1259/2010, Recital (15).
  • Proposal for a Council Regulation Amending Regulation (EC) No 2201/2003 as Regards Jurisdiction and Introducing Rules Concerning Applicable Law in Matrimonial Matters. Brussels 17 July 2006 COM(2006) 399 final, 2006/0135 (CNS), 4.
  • Reg 1259/2010, Art 4.
  • Radmacher v Granatino [2010] UKSC 42, [73].
  • Ibid, [74].
  • Hyman v Hyman [1929] AC 601.
  • D v P [1998] 3 FCR 403.
  • [2008] 2 FLR 989.
  • Case C-281/02 Owusu v NB Jackson (trading as Villa Holidays Bal-Inn Villas) and others [2005] ECR I-1383; [2005] All ER (D) 47.
  • Cook, supra n 135, [10].
  • [2010] EWHC 843 (Fam).
  • Thorpe LJ, “London – The Divorce Capital of the World” [2009] Family Law 21.
  • Ibid.
  • Kroll, supra n 106, 390; Boele-Woelki, supra n 86, [3.1.4].
  • CMV Clarkson, “Matrimonial Property on Divorce: All Change in Europe” (2008) 4 Journal of Private International Law 421.B
  • JKN, supra n 138; Moore, supra n 111.
  • Ireland had particular concerns with the original Brussels II convention and wanted the court of the state in which a claim for recognition was made to authenticate the existence of a connection with the court which had awarded the judgment. This was a departure from the classic prohibition on review as to substance at the time of recognition of a foreign judgment, enshrined in Art 18 of the Brussels II Convention and Art 29 of the Brussels I Convention. Shannon, supra n 119, 149.
  • 145 Ireland and England.
  • 146 Ireland and England.

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