Een complete en heldere samenvatting van de bijeenkomst 4, 5 en 6 van Family Law in Europe, gegeven door Mariken. De tutorials 1-3 zijn eveneens verkrijgbaar op Stuvia.
There are three important documents you have to distinguish!
Brussel 2bis
This document doesn’t say anything about applicable law
This is a regulation that decides on the jurisdiction
o What court is competent in divorce cases?
The entire EU is in it (27 countries) except for Denmark
It’s direct applicable in EU member states
Rome III
This document decides what law is applicable in a divorce case
o So for example: Brussels 2bis decides that a French court is competent and Rome III
says German law is applicable. In that case, a French court has to apply German law.
Only 17 countries are part of Rome III. This is because Rome III is an example of enhanced
cooperation. States are not obligated to be a part of it, you are free to cooperate together.
Which countries are part of it, is written in the preambule.
The maintenance regulation
This regulation is about the financial consequences of divorce
It’s about jurisdiction AND applicable law (see further)
A. On National law
1. What are the grounds for divorce in your country?
It is enough to state that the marriage is sustained (duurzaam ontwricht). It is not about guilt.
Why is it for every country different? Because the EU members have autonomy! In the UK for
example, you have to prove that the marriage is indeed broken down. The reason behind this is that
they want to protect traditional marriage because a divorce has a lot of consequences, also for
children.
2. From which precise moment are spouses divorced after a divorce decision (date of the
judgment, moment of registration, other)?
The moment of registration by the register (in de registers van de burgerlijke stand).
3. Is there an obligation for ex-spouses to pay maintenance after a divorce?
In case one of the ex-spouses has not the means to pay for her maintenance, there is a legal
obligation on a person to provide financial support to their spouse before or after marital separation or
divorce.
4. Under which conditions will a divorced person have an obligation to pay maintenance to
her/his ex-spouse?
See question 3.
B. Basic questions
On EU PIL:
5. Has the EU already undertaken legislative action in the field of conflict rules regarding
international divorce?
Brussel 2bis
Rome III
The maintenance regulation
,6. If the previous question is answered in the affirmative, when did the EU undertake legislative
action? What was the legal basis of that action? What was the character of the legislative
action (directive/ regulation/ other instrument)?
Brussels convention 1968 was about family law
o But it did not deal with matrimonial law (divorce).So there was a need for this kind of
legislation!
Brussel 2 in 2000. This dealt with family law, including matrimonial law
o But this was only for legitimate children
Brussel 2 bis in 2003
o This deals with all children
So the main difference between these two is that Brussels 2 only dealt with children born in a
marriage. Brussel 2bis deals with all children, born in a marriage and not. So also stepchildren!
7. Which rules govern the recognition of a divorce granted by a court in another EU Member
State?
Article 21 Brussels 2bis!
This article is applicable from 2005. So what if a divorce happened in 2001? It doesn’t apply according
to article 64 Brussels 2bis. So in that case, you have to look at national law and Brussel 2.
Any EU country must automatically recognise judgments given in another EU country on matrimonial
matters (see Article 21 Brussels 2bis). Recognition can be refused if, for example:
recognition is clearly contrary to public policy
the defendant did not receive the document initiating proceedings in time to
arrange legal defence (in cases where the judgment was given in the defendant's
absence)
recognition is incompatible with another judgment given between the same
parties.
8. Which rules govern the recognition of a divorce granted by a court in another State, which is
not an EU Member State?
National law. Because this is not about EU states and not about free movement. So in that case (for
example in the Netherlands) they have to apply national law rules in private international law (book 1).
C. In-depth questions
On EU PIL:
9. Describe the rules on international jurisdiction in Brussels IIbis. In which cases does this
regulation apply?
Matrimonial matters between member states of the EU.
10. Describe the rules on international jurisdiction, applicable law and recognition and
enforcement in the Maintenance Regulation. In which cases does this regulation apply?
o Article 1 section 1 Maintenance Regulation
o This is only applicable to EU member states
o It’s about the financial consequences of divorce
o It’s about jurisdiction AND applicable law
, 11. Describe the choice of law (applicable law) system of the Rome III Regulation. In which
cases does this regulation apply?
Brussels IIbis does not determine what law applies when an application for divorce is being
considered. Rome III does! For example, if an Irish person living in the UK wants to divorce a German
spouse who is living in France, which national law applies?
o Rome III = enhanced cooperation so only applicable in a couple of states
o Article 5: partners can choose the applicable law!
o Article 5 (1) is about habitual residence (this is the center of interest). It’s the country
where someone’s heart is, where someone’s life is.
12. Why were some Member States reluctant (onwillig) to participate in the Rome III
Regulation? Distinguish between legal arguments and practical/political arguments.
Sometimes it contrasts with national law and in that case, Rome III prevails according to aricle 4 Rome
III. Not all countries are happy to accept that.
13. The Rome III Regulation is an example of a so-called enhanced cooperation in order to
achieve a regulation on conflict rules regarding divorce and legal separation. What is enhanced
cooperation? In what fields has enhanced cooperation been used?
Enhanced cooporation = versterkte samenwerking. See further!
14. As to the scope of Brussels IIa (or Brussels 2bis) and Rome III, do they include same-sex
marriages and private divorces?
Brussels 2bis
Same sex marriages
Is there an EU obligation to recognize same sex marriages? No
But if it falls under marriage (under National law) than it falls under the articles of Brussels2bis!
So there is also not an obligation to implement it in this regulations but if it falls under marriage under
National law, than Brussels2bis is applicable!
Private divorce
Private divorce is like a ritual for example in Islamic when the husband says to his wife: I divorce
you, I divorce you, I divorce you’’ and then you are divorced.
What if this was implemented in a EU member state?
1. Look at article 1 divorce is divorce, it falls under the scope of article 1 so Brussels 2bis
applies.
2. However, if we look at the recognition (article 21 Brussel 2bis) a judgment given in a
Member state shall be recognised in the other Member States without any special procedure
being required.
3. So: is this ritual a judgement?
a. Look at article 4! No, because it has to be pronounced by a court.
So Brussel 2 bis does not deal with private divorces because it is not a judgement and therefore it
cannot be recognized.
Rome III
In case private divorce is implemented in an EU member state, is Rome III applicable in case that this
Member State is part of Rome III?
Member state a have to recognize the law of member state B, but not if it is against the public policy!
Article 12 Rome III
CASUS
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