EU Law Blog

We talked about whether there are reasons for the EU to harmonise family law. And in fact, in terms of what we might think of as core family law, the legislation and proposed legislation focuses on identifying what country’s rules control certain questions and how people can enforce rights they have under one Member State’s law in another Member State. So, there is a Green Paper, published nearly a year ago, on applicable law and jurisdiction in divorce matters; and there is a regulation on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and parental responsibility (which is in force). The tendency is to focus on how to allocate jurisdiction and on mutual recognition (like full faith and credit) rather than on the substantive law. But the jurisdictional issues can be significant if the different Member States have very different approaches to divorce, for example. Here is a graphic example from the Green Paper:

A Finnish/Swedish couple move from Stockholm to Dublin where they are offered interesting jobs. Their marriage deteriorates and they finally decide to divorce. The couple would expect the divorce proceedings to be rather simple and swift, as it would be under Finnish or Swedish law, since they both want to divorce and do not have any children. However, only Irish courts have jurisdiction according to the new Brussels II Regulation and Irish courts apply Irish law (“lex fori”) to divorce proceedings, irrespective of the nationality of the spouses. The only way to ensure the application of Swedish or Finnish divorce law would be if a spouse returned to his or her Member State of origin for at least six months and then applied for divorce in that country. Neither spouse is willing or able to quit his or her job and leave Ireland for six months for this purpose. On the other hand, they want to avoid the application of Irish divorce law, which requires a four year separation period to establish that the marriage has broken down. They are surprised that the conditions for divorce have changed so dramatically, due to their decision to move to another Member State.

This example suggests that the impetus for thinking about family law is in part economic (knowledge of a case like this could act as a disincentive to moving to another Member State for work) but it isn’t really fundamentally economic - the Commission seems to think that people should be able to choose which family law system they feel most closely connected to when they contemplate divorce or at least that the rules should promote legal certainty.

So, I want to know whether the Green Paper is just a step along the way to full harmonisation of divorce law (although the Irish example suggests this may be difficult) or whether the idea of focusing on choice of law and choice of jurisdiction makes more sense than harmonisation in other areas (for example, contract law).