The Problems of Jurisdiction and Applicable Matrimonial Law in European Union - Essay Example

THE PROBLEMS OF JURISDICTION AND APPLICABLE MATRIMONIAL LAW IN EUROPEAN UNION WOULD ADOPTION OF THE PROPOSED NEW REGULATION ADDRESS THE ISSUES? Introduction After the formation of the entity now known as the European Union by the Treaty establishing the European Community, there has been great progress in the field of co-operation in various aspects of public and private international law in the European Union. There are various Regulations and Conventions governing the interaction between nations as well as individuals. Conventions such as European Commission on Human Rights provide sweeping rights to the citizens of member states. Article 8 of the said Convention provides the following “Everyone has the right to respect for his private and family life, his home and his correspondence”.1 Freedom to move within the Union, free movement of capital and goods and advancement in means of transport has allowed citizens from one state to the other with ease, and the various regulations and rules have made it possible for citizens to enforce their rights. As the emigration of people increased in time, and the changing times increased the number of divorce cases and other matrimonial disputes, need arose for harmonizing the issues of jurisdiction and the law applicable for persons not staying within their own state or marrying a person from another state. Most Member States do not offer spouses the choice of applicable law. This may lead to a result that does not correspond to peoples legitimate expectations2 The Need for a Unified Law regarding Matrimony The marriages of so called international nature pose a serious problem for the courts and society in general. Because of the free movement of persons across borders in the internal market, many couples have opted to stay in a different Member State rather in the country of their nationality. According to estimates of the European Commission, there are 2.2. million marriages in EU every year, 8,75,000 divorces of which 16% are international marriages.3 This presents serious points for consideration of the concerned parties with various aspects of the issue. It needs to be studied as to what is the impact of the Regulation on national private international law. On the one side, the conflict of laws necessitates uniformity or harmonization of systems of law. On the other hand, law of one Member State should be respected particularly where the subject is of a deeply personal nature and specific to the deeply ingrained cultural ethos of the Member State. For example Malta does not recognize divorce and consequently there is no provision in the local law of that country for matrimonial proceedings relating to divorce and annulment of marriage. Malta though it is a small nation, is part of the European Community, and there is a distinct possibility of spouses from different Member States staying there. The spouses may desire to separate and obtain divorce. In such a situation, there is a real problem of where they can obtain divorce. Also, any regulation and rule will have an impact on substantive law of the Member States. It has to be considered whether adoption of the Regulation mean that changes have to be made in the national systems. Further, there may be many difficulties as regards the consistency of the private international law system. Then it has to be considered as to how far the Regulation is in harmony with the existing provisions of the substantive law of various Member States. Again, ideally, a system applicable to matrimonial law should provide for all the aspects of the conflict between the spouses arising out of matrimonial disputes. It should provide for solutions to all the problems faced by the courts including divorce, parental responsibility, maintenance, separation, child custody, visitation rights (now termed as contact in the U. K.). It should make provision as regards abduction of children by one spouse. The next area of concern is the question whether there are any difficulties as regards the implementation of any new provision in the national systems of different Member States. They may have to carry out implementing measures before any new regulation can take effect. The steps leading to regulations regarding matrimonial proceedings Brussels II is Regulation (EC) No 1347/2000 which came in force on 1 March 2001, on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses. Council Regulation (EC) No 2201/2003 of 27 November of 2003, known as Brussels II bis and described as "concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility" is the currently applicable law in the EU. In July 2006 the European Commission, with an intention to improve certainty in divorce proceedings in cases as mentioned above, proposed a draft Regulation to determine the applicable law in the said proceedings and to amend existing rules regarding jurisdiction. This proposal is known as Rome III. This essay discusses the events leading up to the proposal, its background and the reasons why it could not become law. The essay will try to compare the provisions of Rome III with those of Brussels II bis and find out the deficiencies in the existing law that the proposed Rome III regulation did not address. All of this will be with particular reference to the United Kingdom. The Brussels II bis Regulation became effective as of 1st March 2005 for 24 Member States of the European Union. There was much discussion in the media and between the interested parties including jurists, advocates and various Member States. The impact and application of the Brussels II bis was attacked on the ground that there was no substantive change in the new rules regarding the problems faced in the implementation of an ideal form of law applicable in matrimonial proceedings, particularly amongst immigrant couples. The problem is more acute in families in which the spouses are from different Member States. What this paper is about The following is a comparative synthesis of the impact and application of the Brussels II bis Regulation within the European Union. Europeanization of private international law in family matters is a goal of the European commission which is most eager to do away with distinction between competing provisions of matrimonial law which may put the weaker party at a disadvantage. The Commission wanted the citizens of the member states to have a unified and harmonized approach to the choice of law related to family matters. Rome I had provided choice of law related to contract, and Rome II was regarding torts. Brussels II dealt with the aspects of law relating to marriages, divorce and other proceedings between persons to different nationalities marrying each other or spouses from one country migrating to another country within the Union. Brussels II bis (also known as the new Brussels II) completely repealed Brussels II, but it was not as effective as it was hoped to be. According to one commentator Brussels II is possibly the most anti-family and unconciliatory piece of legislation in family law. It directly discourages mediation, reconciliations and early settlements. So when the EU announced that it was engaging on a review and revision, there was much rejoicing. Alas hopes were unfulfilled.4 The essay will compare the details of divorce and legal separation dealt with in Brussels II, its amendment by Brussels II bis, the proposal for Regulation which came to be known as Rome III, and the latest proposal for Regulation, officially, Proposal for a COUNCIL REGULATION (EU) implementing enhanced cooperation in the area of the law applicable to divorce and legal separation {COM(2010) 104 final}. The formation of the EU European Union was formed as an alliance of traders. Gradually, the need was felt for mutual co-operation in all fields. The world had suffered because of extreme nationalism by some powerful countries. The very existence of smaller countries was threatened, and the ensuing bitter feelings that nations had against each other soon developed in to sympathy for suffering of others. Particularly in Europe where the intensity of World War II had been the most extreme, people from across national boundaries wanted peace in the region. Need was felt for the common pursuit of a common goal in which every country would play an equal part. The European Union came into existence formally by the signing of the Maastricht treaty in 1993. The present situation regarding matrimonial legal proceedings in EU countries There are around 2.2 million marriages in the EU every year. The Commission estimates that around 350,000 of these involve an international couple. The EU has a comparatively high divorce rate. Of the 875,000 divorces in Member States, it is estimated that 16% are international.5 If the proportion is similar in England and Wales, around 24,000 of our 150,000 divorces annually involve international couples who need to be aware of the difficulties they may face navigating the wide variation in divorce law across European jurisdictions. Approximately 15 per cent of the divorces pronounced in Germany each year, which is about 30,000 couples concern couples of different nationalities.6 There are two aspects related to the harmonization of law. One is the aspect of jurisdiction. The second is that of the law to be applied. In case of spouses living in their parent country, the choice is obvious. Where the spouses are residing in different countries, there are various options. Where the spouses from two different countries are residing in a third country, the problem is most complex. It is a bit easier if spouses from the same country are residing in another country in the Union. Regarding the first aspect of jurisdiction the following propositions will make the complexity of the problem easier to understand. (1) Spouses from one country living in the same country- the court in the same state will have jurisdiction. In this case, only one member state will have jurisdiction. (2) In case of spouses from the same country living in another country, they will have a choice of filing proceedings in their parent state or the country that they are staying in. Here, the parties have a choice of two jurisdictions, their parent country or the country that they are staying in. For example, an Italian couple staying in France may file proceedings before either the proper court in Italy or France. (3) Spouses from different countries staying in a country of which one of them is a national. For example, an Englishman and a French wife are staying in the United Kingdom have a choice either to file a proceeding before the court in United Kingdom or In France. (4) There is another possibility where the spouses habitually resided in one member state and one of them has now moved on to some other member state, then the member state where one spouse still resides has jurisdiction. The parties have to first decide where the proceedings are to be initiated. Different laws apply in different countries, and though the parties can always agree on the issue of the forum of the proceedings, there is obviously no consensus when there is dispute between the parties. In majority of the countries of the European Union, the family law of the country is applied in matrimonial matters. If the couples are of international status, the problem arises as to which law is to be applied. Thus the system must address both the forum and the applicable law. Applicable law is the body of law which is to be applied to the particular proceedings. But this gives rise to complications like when and in what circumstances the couples’ own law should be applied and which law is to be applied etc. This has lead to the need for harmonization. Rome III suggests two important modifications with respect to matrimonial matters and a new text on residual jurisdiction (Article 7) has been introduced. We would consider the background of BII bis and the draft regulation Rome III, the advantages and disadvantages of both and finally a comparison of both. The rules for “legal separation” and “Marriage annulment” are found in Article 3 of Brussels II bis. The rules for divorce are also incorporated in this law. Brussels II set out the circumstances in which a Member State that has contracted to adhere to the Convention can have jurisdiction for divorce and related financial matters. It therefore standardized the jurisdiction for contracting states acceding Brussels II to have jurisdiction to deal with divorce and financial proceedings. If a couple has connections with two European countries, it may well be possible that the courts of those two European countries would, at least theoretically, have jurisdiction to deal with that couple’s divorce. Brussels II lays down the way in which such a conflict of jurisdictions is dealt with. Courts in the country where the divorce proceedings are filed first will assume jurisdiction and if notice of this proceeding is served on the other party, then courts in another country will not have jurisdiction to entertain the proceedings. 1.  Where proceedings relating to divorce, legal separation or marriage annulment between the same parties are brought before courts of different member states, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established. 3.    Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court…"7 Example: A German husband and an English wife live in England for two years after their marriage and for four years after that in Germany when they separate. The wife returns to England. After two years of her return they decide to divorce. The husband has meanwhile continued his stay in Germany. In this case, both the English and the German courts had jurisdiction to deal with their divorce. If the wife issued divorce proceedings in England first and the husband then tried to do so in Germany, the German court would have to decline jurisdiction and the divorce proceedings would be dealt with in England. If there is no agreement between the spouses, then there will be predictability about the forum. As regards the law to be applied, in the U. K. the common law (lex fori) will apply regardless of the nationality. The legal background of judicial co-operation in family law matters (Earlier conventions regulations etc) The legal and political background of judicial co-operation in family law matters within Member States of the European Union is provided in Articles 61-67 of the Treaty of the European Union8, as modified by the Treaty of Amsterdam in 1997. Amongst other objectives, the aim of this treaty was "in order to establish progressively an area of freedom, security and justice, the Council shall adopt (…) (c) measures in the field of judicial cooperation in civil matters" (Article 61). Further, "Measures in the field of judicial cooperation in civil matters having cross-border implications, to be taken in accordance with Article 67 and insofar as necessary for the proper functioning of the internal market, shall include: (a) improving and simplifying: the system for cross-border service of judicial and extrajudicial documents; cooperation in the taking of evidence, the recognition and enforcement of decisions in civil and commercial cases, including decisions in extrajudicial cases; (b) promoting the compatibility of the rules applicable in the Member States concerning the conflict of laws and of jurisdiction; (c) eliminating obstacles to the good functioning of civil proceedings, if necessary by promoting the compatibility of the rules on civil procedure applicable in the Member States" (Article 65). In the meeting of the European Council in Tampere (15 and 16 October 1999)9, the European Council arrived at following conclusions: "VI. Mutual recognition of judicial decisions 33. Enhanced mutual recognition of judicial decisions and judgements and the necessary approximation of legislation would facilitate co-operation between authorities and the judicial protection of individual rights. The European Council therefore endorses the principle of mutual recognition which, in its view, should become the cornerstone of judicial co-operation in both civil and criminal matters within the Union. The principle should apply both to judgements and to other decisions of judicial authorities. 34. In civil matters the European Council calls upon the Commission to make a proposal for further reduction of the intermediate measures which are still required to enable the recognition and enforcement of a decision or judgement in the requested State. As a first step these intermediate procedures should be abolished for titles in respect of small consumer or commercial claims and for certain judgements in the field of family litigation (e.g. on maintenance claims and visiting rights). Such decisions would be automatically recognised throughout the Union without any intermediate proceedings or grounds for refusal of enforcement. This could be accompanied by the setting of minimum standards on specific aspects of civil procedural law. (…) VII. Greater convergence in civil law 38. The European Council invites the Council and the Commission to prepare new procedural legislation in cross-border cases, in particular on those elements which are instrumental to smooth judicial co-operation and to enhanced access to law, e.g. provisional measures, taking of evidence, orders for money payment and time limits. 39. As regards substantive law, an overall study is requested on the need to approximate Member States’ legislation in civil matters in order to eliminate obstacles to the good functioning of civil proceedings. The Council should report back by 2001." How the law evolved The Brussels II10 was the regulation 1347 of 2000 which aimed at harmonization of existing laws. It applied to civil proceedings relating to divorce, legal separation or marriage annulment; proceedings relating to parental responsibility for the children of both spouses on the occasion of the matrimonial proceedings. That Regulation was in turn been superseded by Council Regulation (EC) No 2201/2003 of 27 November 2003 ("Brussels II bis").11 On 14/ 03/2005, the European Commission issued a green paper on applicable law and jurisdiction in divorce matters inviting interested parties to submit comments.12 On 17 July 2006 the Commission adopted, on the basis of Article 61(c) and Article 67(1) of the Treaty establishing the European Community (now Article 81(3) of the Treaty on the Functioning of the European Union), a proposal[1] for a Council Regulation amending Regulation (EC) No 2201/2003[2] as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters (Rome III).13 Objectives of the regulations as set by the European Union Areas for concern in the present scenario The Green Paper issued by the European Commission lists the following shortcomings of the existing situation, (when Brussels II bis is applicable) with regard to the applicable law in matrimonial proceedings. Existing Brussels II bis provisions allow spouses to choose from among a number of jurisdictions. A matrimonial proceeding brought up before a court in one Member State, the applicable law will be decided by the national conflict of laws rules of that state. It is an area of concern that these laws of various countries are significantly different than each other. A combination of the differences in conflict of law rules in different countries on the one hand and rules regarding jurisdiction is likely to cause a number of problems in divorces where the spouses are from different nationalities. Apart from these general concerns, there are certain other shortcomings enumerated in the green paper, which are summarized alongwith examples in the said paper itself. 1. Lack of certainty and predictability for the spouses: It is difficult to predict which national law will apply in a given case. This is true of couples having no habitual residence or common nationalities. But it also applies to couples of the same nationality who split up and move to different Member States. Example: A Portuguese man and an Italian woman get married in Italy, immediately after which the man returns to Portugal. After two years, the couple decides to divorce. The couple may file for divorce in either Italy or Portugal. In Portugal the courts will apply the law of the spouses’ habitual residence or the law with which the spouses have the ‘closest connection’. In Italy, courts will apply the law of the Member State ‘where the marriage has been principally based.’ 2. Insufficient party autonomy: National conflict of laws rule foresee the possibility only of the alternative between the law of the spouses’ nationality or the law of the forum (lex fori). A degree of autonomy will allow a little bit of flexibility in that the spouses will choose which law will apply to their case. This will enhance legal certainty and predictability for the spouses. Example; An Italian couple have lived in Munich for twenty years and consider Germany their home. If they decide to apply for divorce, they will have a choice of doing so in Italy or Germany. But both the German and Italian conflict of laws rules are based on the common nationality of the spouses. Hence the applicable law will be Italian in both the countries. It means that the spouses will have to wait for three years as per the Italian law, instead of getting divorced after one year of separation as provided in German law. 3. Risk of results that do not correspond to legitimate expectations of citizens: Citizens moving from one Member Sate moving to another may be unaware of the law applicable in that state to the divorce proceedings that may arise. In the case where the law (Brussels II bis) does not allow spouses to apply for divorce in a Member State of which only one is a national in absence of other connecting factor, spouses will be forced to apply for divorce in the court of their habitual residence, which they make not desire. Example:A Finnish/ Swedish couple, after moving from Stockholm to Dublin decide to apply for divorce expecting it to be easily obtainable. But Irish courts will have jurisdiction and the applicable law will be Irish law to divorce proceedings. If they want to obtain divorce according to Swedish or Finnish law, one of them will have to move to that country. But neither is willing or able to quit his or her job for six months. If so, they will have to wait for four years as per Irish law before they can obtain divorce. 4. Risk of difficulties for citizens living in a third State. The rules regarding jurisdiction do not cover all situations. Situations may arise where none of the grounds of jurisdiction of Brussels II bis will be applicable. If a divorce is pronounced in a third State, the couple may face serious difficulties to get recognition for that divorce in their respective countries. Example: A German/ Dutch couple is staying in a third State since many years. Though she wants to, the wife can not apply for divorce in a German court or in any other Member State. None of the grounds of jurisdiction is applicable since they are not habitually resident of any member State, nor do they share a common nationality. The wife can not apply in Germany as provisions of Brussels II bis afford protection to respondents. She can not apply for divorce in the Netherlands as the Dutch law does not provide for internal jurisdiction rules in facts of the case. She can only get divorce from the third State and hope that the divorce is recognized in Germany. 5. Risk of ‘rush to court’. So as to prejudice the rights and interests of the other spouse, one spouse may ‘rush to the court’. By application of the lis pendens principle, if a matrimonial proceeding is pending in court in one country, then no other court in that country or otherwise can entertain another similar proceeding between the spouses. This often leads to one spouse deliberately to file proceeding in one member state with the result that the other spouse is made ot face litigation in a set up with which he has no relationship. Example: The husband in a Polish couple moves to Finland and decides to divorce his wife. After his stay for more than one year in Finland, which gives Finnish courts jurisdiction to entertain divorce proceedings, he files a divorce application. Under Polish law, he would have had to wait for a lengthy period of time. But in Finland he may obtain divorce after bsix months despite his wife’s objections. Conclusion The need for a harmonized approach to applicable law and issue of jurisdiction in the field of matrimonial matters is an area of vital interest for the countries in the EU. Family is the cornerstone of the society and the smooth functioning of a marital system is an essential factor in the existence of a peaceful society. In case there are some disputes between spouses, there should be ease of institution, prosecution and adjudication of legal proceedings. This is particularly so in cases of marriages where the spouses belong to different nationalities. Brussels II bis was thought to be an improvement over Brussels II. But it did not positively impact the area of matrimonial disputes. So the European Commission decided to adapt the proposal which came to be known as Rome III. This proposal was discussed most widely and there was severe criticism of the same. The Commission even called for responses from various interested bodies regarding the need and adequacy of the proposed Regualtion. 14So as to eliminate the obvious defects of the existing regulations and harmonize the law relating to matrimonial disputes, EC has now brought out a new proposal for a Council Regulation which seems to have been received well. References European Convention on Human Rights (As amended from time to time) Article 8 http://www.hri.org/docs/ECHR50.html Harmonisation of divorce law in the EU Briefing from the Family department at Manches LLP. http://www.manches.com/downloads/briefings/Applicable_law_briefing_note.pdf Applicable law and jurisdiction in matrimonial matters (Proposal for a Regulation) http://europa.eu/legislation_summaries/justice_freedom_security/judicial_cooperation_in_civil_matters/l16020_en.htm James Stewart, Rome III … or not, Internet article, 17/ 11/ 06 http://www.manches.com/practices/family/article.php?id=130 Retrieved on 25th April 2010 David Hodson Brussels II Encore A Summary of Brussels II. (June 2005) http://www.familylawweek.co.uk/site.aspx?i=ed347 The European Commission Green paper on applicable law and jurisdiction in divorce matters, Internet article, 14/ 03/ 2005. http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:52005DC0082:EN:NOT Retrieved on 25th April 2010 Presidency Conclusions Tampere European Council http://www.consilium.europa.eu/uedocs/cms_data/docs/pressdata/en/ec/00200-r1.en9.htm Retreived on 25th April 2010 Brussels II Brussels II bis http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2003:338:0001:0029:EN:PDF Rome III (Proposal for a Council Regulation) Response of International Academy of Matrimonial Lawyers European Chapter to Rome III http://ec.europa.eu/justice_home/news/consulting_public/divorce_matters/contributions/contribution_iaml_en.pdf Read More