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Tutorial 3: Comprehensive case answers including case law
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Comprehensive elaboration of tutorial 3 including literature review and case law review.
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Divorce and MaintenanceIn this tutorial, we apply Brussels IIbis, Rome III and the Maintenance Regulation to a case
study. We identify the scope of application of these three instruments and their role in
preventing and resolving disputes.
This year we will still use the “old” Brussel IIbis and not Brussel Iibis recast.
Literature
● J. M. Scherpe, European Family Law, Volume III,
○ Chapter 2
Divorce does not have the status of an individual human right, and the right to
dissolve a marriage is not protected either by the ECHR or under EU law.
Substantive divorce laws in Europe;
a. Irretrievable breakdown (duurzame ontwrichting van het huwelijk)
- England: the reform that failed, has been no government that dared to burn its
fingers on divorce law
- France: lingering divorce à la carte: plurality of the grounds of divorce; mutual
consent, mutual acceptance of the breakdown of the marriage, the
irretrievable breakdown (two year de facto separation) of the conjugal bond or
fault (married life is unbearable)
- German: objective proof of the breakdown by living apart for more than one
year. Divorce by consent is restricted by the requirement that the spouses
should agree on ancillary matters
- Italy: divorzisti defeat anti-divorzisti; very restrictive compared to European
standards because of the two-stage process (religious divorce only has civil
effects and civil divorce breaks the matrimonial bond) and a long period of
separation before converting the divorce
- Ireland: a thorny way to divorce: a court can only grant a divorce if 1. the
spouses have lived apart for more than 4 years during the 5 previous years 2.
there is no prospect of reconciliation and 3. the court is satisfied with the
provisions made for the spouse and children. So objective criterion (4 years)
plus subjective criterion (no prospect).
- Malta: the last bastion falls: the last European country (except for Vatican city)
to allow divorce. Similar divorce law to Ireland.
b. Beyond Irretrievable breakdown
- Sweden: divorce and demand re-enters the European scene; if two spouses
want to divorce they just easily can, unless there are minor children involved.
No period of reflection is required
- Norway: divorce on demand after a period of separation
, - Russia: irretrievable or divorce on demand? facade of irretrievable
breakdown, but actually divorce on demand. renewal of a divorce petition
constitutes an irrefutable presumption of the breakdown of the marriage.
- Spain: embraces divorce on demand
- Portugal: follows the CEFL principles
The CEFL (Commission on European Family) gave out the CEFL Principles of
European Family Law regarding Divorce which are not legislation, but only a non-binding
model, have an important influence in the development of European divorce law. The CEFL
chooses two separate grounds for divorce (no irretrievable breakdown);
1. Consensual
→ Without period of separation
→ If no minor children and the spouses reach agreements on
ancillary matters
2. unilateral (non-consensual)
→ one year factual separation as ground
Grounds of divorce;
1. The fault divorce = divorce as a sanction
2. irretrievable breakdown (in the narrow sense of term) = divorce as a remedy
of failure
Can be proven in three different ways;
a. Subjective criterion → convincing the court
b. Objective criterion → period of separation
c. Both
3. mutual consent = divorce as an autonomous decision by the spouses
themselves
a. can be labelled as irretrievable breakdown, and constitutes an
irrefutable presumption of the same.
b. OR consent is characterised as a separate ground.
Can still be restricted differing from state with requirements such as
agreements on ancillary matters or length of marriage
4. Divorce on demand = divorce as an individual right
Only form of state intervention in this kind of divorce is a short waiting
or reconciliation period differing from state to state
The differences in divorce procedures between one jurisdiction and another are even greater
than those between divorce grounds. Especially when it comes to administrative divorce.
○ Chapter 5
The financial consequences of divorce are regulated in very different ways amongst the
European jurisdictions. Even the very basic understanding of the nature and structure of the
financial consequences of divorce appears to be fundamentally different. The most obvious
contrast here is between the common law jurisdictions of England and Wales, Northern
Ireland and Ireland and the continental European jurisdictions of the civilian tradition.
Division of property in case of divorce, three European approaches;
1. Community of property upon marriage
, - Community of acquest (overnames) → pre and post marital property
is excluded
- Belgium
- France
- Luxembourg
- Portugal;
- Spain
- Universal community of property
- The Netherlands
2. No community but there is a statutory regime governing the participation in the
property of the other spouse in case of divorce
a. Nordic Countries: where a community of property is created in the event of
divorce and the system therefore is a ‘deferred community of property’
b. Certain compensation is stipulated by the law
i. Germany: community of accrued gains
ii. Switzerland: participation in aquests
3. financial consequences of divorce, including the division of property, are subject to
the discretion of the court
- Austria: where the court retains the discretion to decide otherwise (other than
the majority of European Countries)
England, Wales, Northern Ireland and Ireland do not have a matrimonial property regime.
They prefer to look at each individual case.
● M. Wells-Greco, ‘The Importance of Being Brussels IIbis’,
International Family Law Journal 2012
Summary under the questions.
● Practice Guide for the application of Brussels II Regulation
(Council Regulation (EC) No 2201/2003 of 27 November
2003 concerning jurisdiction and the recognition and
enforcement of judgments in matrimonial matters and the
matters of parental responsibility, repealing Regulation
(EC) No 1347/2000); available at:
http://ec.europa.eu/justice/civil/files/brussels_ii_practice_g
uide_en.pdf
The practice guide: https://europa.eu/youreurope/citizens/family/couple/divorce-
separation/index_en.htm
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