member state should be recognised and
enforced in other member states and the
procedures for doing so should be as
simple as possible.
this by providing for common rules in
relation to jurisdiction, applicable law,
recognition, enforcement, cooperation and
standardised documents.
Jurisdiction in divorce
The EU has, very commendably,
introduced identical divorce jurisdiction
across the entire EU which has been
very helpful. It has introduced regulation
that provides for action to be taken in
the courts of the member state where,
in summary, one or both of the spouses
are or were habitually resident or it is the
member state of domicile. The legalisation
though provides a wide list of jurisdictional
divorce criteria which has inevitably meant
that for international families, more than
one EU country often has jurisdiction to
deal with matters. The regulation provides
that once proceedings have started in a
particular member state, other states must
refuse jurisdiction.
Recognition of decisions
EU regulation provides that a decision
on a matrimonial matter made in one
member state must be recognised and
enforced in the other states without any
special procedures. You do not have to go
to court to have it recognised. However,
any interested party may ask the court in
the other member state not to recognise
the decision. The court may refuse to
recognise the decision if such recognition
is clearly contrary to public policy, if the
decision contradicts another decision, or if
there were certain procedural defects.
The EU regulation has introduced the
concept of lis pendens, i.e. first to issue.
This has often caused there to be a race
to issue on a tactical basis which has been
condemned by many judges and lawyers
in England who favour the approach
in England of endeavouring to resolve
matters before the issue of proceedings.
Alongside the divorce are the financial
aspects that have to be dealt with. England
is regarded as probably one of the most
generous in Europe when it comes to
financial settlements. This has inevitably
led to a rush to court where one party
issues fast and first to get proceedings
established in England and therefore obtain
the most beneficial financial outcome.
Family lawyers doing international work
have had to become very alert and quick
to obtain instructions and issue first. This
is completely against the spirit of family
law work in England as it discourages the
parties from trying to reach agreements
before issuing and it can result in people
having to rush and make a decision
about ending a marriage which prevents
attempts at reconciliation. The first to issue
approach can favours the wealthier spouse
who is able to fund quick and specialist
legal advice, benefits the spouse more
willing to break up the marriage and the
spouse who is more used to consulting
lawyers.
Maintenance
The EU has introduced regulation dealing
with the recognition and enforcement
of maintenance orders in EU member
states. It aims to enable a maintenance
creditor (the person owed money under
a maintenance order) to obtain easily
and quickly an order which can readily
be enforced throughout the EU. It does
Parental responsibility
There is EU regulation that deals with the
matters of parental responsibility. Parental
responsibility in this respect includes rights
of custody and rights of access.
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.
Again, in general, once the matter is before
the courts in one country, that country
continues to have jurisdiction even if the
child has lawfully changed country of
residence. 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.
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). The
certificate means that the judgement is
treated in the new member state as if it
were a judgement of that state.
Child abduction
Child abduction is the unlawful removal
or retention of a child. If you have custody
of a child 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.
England are often viewed as leading the
way in Europe with fast proceedings in
child abduction cases for return orders.
Several EU countries do not operate
returns quickly or effectively. Leaving
the EU is therefore unlikely to change
England’s commitment to a fast timetable
and process for child abduction work.
Co-operation between national
authorities
EU regulations create 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.
Exclusivity
As a matter of policy the EU has declared
that it will not allow any Member State to
enter into bilateral or multilateral treaties
or conventions with non-EU countries on
a topic covered by existing EU legislation
unless the EU gives permission.
Systems and practice
Some justice systems within the EU
are very slow, cumbersome and have
procedural shortcomings. These may work
okay within the national context and the
national culture. They can however cause
havoc and injustice when the dispute
concerning a family also involves more
efficient, fast and effective justice systems.
It can take several years for discrete family
law disputes to be heard before the courts
of some countries yet no other steps can
be taken in any other country until the
original proceedings are concluded. Some
jurisdicti ons have ineffectual disclosure
obligations so it is easy to hide assets and
subvert the process of resolving financial
claims. The EU is aware of these problems
and has rightly and publicly condemned
delays in some Member States’ court
systems.
Should we stay or should we go?
There are very different justice systems
and cultures of legal practice around
Europe which can be a real minefield. The
EU has sought to try create a common
judicial system around Europe which is
commendable, but it has also imposed
a number of laws and procedural
requirements without making sure that the
various justice systems can perform and
comply with those requirements which has
limited the effect of any beneficial change.
As far as family law in England is
concerned we might not significantly lose
out if we are no longer part of the EU,
as there is other international legislation
available which would still be applicable
even if we are not members of the EU,
but if we leave the EU it would result in
a long period of uncertainty as to how
international elements of family law are to
be dealt with.
However, family law itself should not be
the overriding issue to determine voting
decisions within the referendum.
B
y Gemma Hope
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