“INTERNATIONAL FAMILIES” UNDER EU PRIVATE INTERNATIONAL LAW

“INTERNATIONAL FAMILIES” UNDER EU PRIVATE INTERNATIONAL LAW
Ester di Napoli LUMSA University, Rome 20-21 April 2017

Separation (“rome III” regulation)
Regulation n. 1259/2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal Separation (“rome III” regulation) First enhanced cooperation: - On 12 July 2010, the Council adopted Decision 2010/405/EU authorizing enhanced cooperation in the area of the law applicable to divorce and legal separation between Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia. As a consequence, these 14 participating Member States adopted Council Regulation (EU) n. 1259/2010, which became applicable on 21 June On 21 November 2012, the Commission adopted Decision 2012/714/EU confirming the participation of Lithuania in enhanced cooperation in the area of the law applicable to divorce and legal separation. That Decision foresees that Regulation (EU) n. 1259/2010 shall apply to Lithuania from 22 May 2014.

“rome III” regulation - On 27 January 2014, the Commission adopted Decision 2014/39/EU confirming the participation of Greece in enhanced cooperation in the area of the law applicable to divorce and legal separation. That Decision foresees that Regulation (EU) n. 1259/2010 shall apply to Greece from 29 July “Double speed Europe”: participating v. non participating MSs (open participation in the enhanced cooperation) ‘participating Member State’ means a Member State which participates in enhanced cooperation on the law applicable to divorce and legal separation by virtue of Decision 2010/405/EU, or by virtue of a decision adopted in accordance with the second or third subparagraph of Article 331(1) of the Treaty on the Functioning of the European Union

“rome III” regulation Today: 16 participating MSs in the Rome III Regulation The Regulation creates a clear, comprehensive legal framework in the area of the law applicable to divorce and legal separation in the participating Member States, provide citizens with appropriate outcomes in terms of legal certainty predictability flexibility and prevents a situation from arising where one of the spouses applies for divorce before the other one does in order to ensure that the proceeding is governed by a given law which he or she considers more favourable to his or her own interests.

“rome III” regulation Scope of application
1) Territorial/personal scope of application 2) Temporal scope of application 3) Material scope of application

1) Territorial/personal scope of application  The Regulation applies only to the Member States participating in the enhanced cooperation.  The Regulation is universal (Article 4) , i.e. it is possible for its uniform conflict-of-laws rules to designate the law of a i) participating Member State, the law of a ii) non-participating Member State or the law of iii) a third State which is not a member of the European Union.

2) Temporal scope of application Article 21 - Entry into force and date of application This Regulation shall enter into force on the day following its publication in the Official Journal of the European Union. It shall apply from 21 June 2012; for those participating Member States which participate in enhanced cooperation by virtue of a decision adopted in accordance with the second or third subparagraph of Article 331(1) of the Treaty on the Functioning of the European Union, this Regulation shall apply as from the date indicated in the decision concerned.  to proceedings started on or after that date + choice of law agreements concluded on or after that day.

3) Material scope of application Article 1 – scope 1. This Regulation shall apply, in situations involving a conflict of laws, to divorce and legal separation. 2. This Regulation shall not apply to the following matters, even if they arise merely as a preliminary question within the context of divorce or legal separation proceedings: (a) the legal capacity of natural persons; (b) the existence, validity or recognition of a marriage; (c) the annulment of a marriage; (d) the name of the spouses; (e) the property consequences of the marriage; (f) parental responsibility; (g) maintenance obligations; (h) trusts or successions.

Article 2: The substantive scope and enacting terms of this Regulation should be consistent with Regulation (EC) No 2201/2003. However, it should not apply to marriage annulment. This Regulation should apply only to the dissolution or loosening of marriage ties. The law determined by the conflict-of-laws rules of this Regulation should apply to the grounds for divorce and legal separation. Preliminary questions such as legal capacity and the validity of the marriage, and matters such as the effects of divorce or legal separation on property, name, parental responsibility, maintenance obligations or any other ancillary measures should be determined by the conflict-of-laws rules applicable in the participating Member State concerned.

“rome III” regulation Will of the parties: the cornerstone of Rome III Regulation: Article 5 - Choice of applicable law by the parties 1. The spouses may agree to designate the law applicable to divorce and legal separation provided that it is one of the following laws: (no dépeçage) (a) the law of the State where the spouses are habitually resident at the time the agreement is concluded; or (b) the law of the State where the spouses were last habitually resident, in so far as one of them still resides there at the time the agreement is concluded; or (c) the law of the State of nationality of either spouse at the time the agreement is concluded; or (d) the law of the forum.

“rome III” regulation 2. Without prejudice to paragraph 3, an agreement designating the applicable law may be concluded and modified at any time, but at the latest at the time the court is seized. 3. If the law of the forum so provides, the spouses may also designate the law applicable before the court during the course of the proceeding. In that event, such designation shall be recorded in court in accordance with the law of the forum. Agreement’s material and formal validity: Article 6: The existence and validity of an agreement on choice of law or of any term thereof, shall be determined by the law which would govern it under this Regulation if the agreement or term were valid. Nevertheless, a spouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seized if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law specified in paragraph 1.

“rome III” regulation Article 7: 1. The agreement referred to in Article 5(1) and (2), shall be expressed in writing, dated and signed by both spouses. Any communication by electronic means which provides a durable record of the agreement shall be deemed equivalent to writing. 2. However, if the law of the participating Member State in which the two spouses have their habitual residence at the time the agreement is concluded lays down additional formal requirements for this type of agreement, those requirements shall apply. 3. If the spouses are habitually resident in different participating Member States at the time the agreement is concluded and the laws of those States provide for different formal requirements, the agreement shall be formally valid if it satisfies the requirements of either of those laws [favor validitatis]. 4. If only one of the spouses is habitually resident in a participating Member State at the time the agreement is concluded and that State lays down additional formal requirements for this type of agreement, those requirements shall apply.

“rome III” regulation Article 8: Applicable law in the absence of a choice by the parties In the absence of a choice pursuant to Article 5, divorce and legal separation shall be subject to the law of the State: (a) where the spouses are habitually resident at the time the court is seized; or, failing that (b) where the spouses were last habitually resident, provided that the period of residence did not end more than 1 year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that (c) of which both spouses are nationals at the time the court is seized; or, failing that (d) where the court is seized [lex fori].

“rome III” regulation Rules on the functioning of conflict-of law rules contained in Rome III Regulation …. “precautions”: Article 10: application of the law of the forum Article 11: exclusion of renvoi Article 12: public policy exception Article 13: differences in national law

“rome III” regulation Rules on the functioning of conflict-of law rules contained in Rome III Regulation …. “precautions”, in particular Article 10: application of the law of the forum “Where the law applicable pursuant to Article 5 or Article 8 makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the forum shall apply”  respect for fundamental rights (see recital 30 of the Preamble)

“rome III” regulation Rules on the functioning of conflict-of law rules contained in Rome III Regulation …. “precautions”, in particular Article 13 - differences in national law “Nothing in this Regulation shall oblige the courts of a participating Member State whose law does not provide for divorce or does not deem the marriage in question valid for the purposes of divorce proceedings to pronounce a divorce by virtue of the application of this Regulation”.  …is validity of the marriage really excluded by the scope of application of Rome III Regulation?

The private international lawyer
as a European lawyer Need for a “web” of contacts around the EU: - e-Justice Portal: Law-MS Law: N-Lex offers a single entry point to national law databases in individual EU countries:

PRACTICAL CASE Jim, a UK national, and Antoine, a French national, met in Paris and lived there for two years: Jim acquired the French nationality. They lived in Spain for six years, where they also got married, in July They also have a beautiful daughter, Maria. In 2012, Antoine moved to Milan for business reasons; in 2013, he decided to separate from Antoine, realizing that their story as a couple had come to the end. You are Antoine’s lawyer. Explain to him how to proceed in order to ask for legal separation/divorce from Jim, both from the perspective of rules on jurisdiction (Brussels II bis regulation) and conflict-of-law rules (Rome III Regulation).

Regulation n. 4/2009 on maintenance obligations
Regulation (EC) n. 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. Relating to jurisdiction, recognition and enforcement, it substituted Regulation n. 44/2001 (Brussels I Regulation), whose article 5, par. 2 established that a person domiciled in a Member State may, in another Member State, be sued “in matters relating to maintenance, in the courts for the place where the maintenance creditor is domiciled or habitually resident or, if the matter is ancillary to proceedings concerning the status of a person, in the court which, according to its own law, has jurisdiction to entertain those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties”.

It is a instrument containing a comprehensive EU Private International Law discipline on maintenance obligations, that is: - rules on jurisdiction; - conflict-of-law rules; - rules on recognition and enforcement; - rules on international cooperation. In particular, as regards conflict-of-law rules  article 15 (“Determination of the applicable law”) establishes that: “The law applicable to maintenance obligations shall be determined in accordance with the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations (hereinafter referred to as the 2007 Hague Protocol) in the Member States bound by that instrument”.

Regulation n. 2201/2003 (Brussels II bis Regulation) has nothing to do with maintenance obligations (as it expressly excludes them from its material scope of application) It is the most complex regulation on EU PIL in family matters, as “mixes” EU PIL rules and “the law of The Hague” Article 18 of the 2007 Hague Protocol establishes that ss between the Contracting States, the Protocol replaces the Hague Convention of 2 October 1973 on the Law Applicable to Maintenance Obligations and the Hague Convention of 24 October 1956 on the law applicable to maintenance obligations towards children.

With Council decision of 30 November 2009 on the conclusion by the European Community of the Hague Protocol of 23 November 2007 on the Law Applicable to Maintenance Obligations (2009/941/EC)  it was stated that the EC has exclusive competence in matters of maintenance obligations. From the coordination of Regulation n. 4/2009, a complex framework arises: matters concerning maintenance obligations are dealt with in a single way, in one uniform instrument; erga omnes nature of conflict-of-law rules

Temporal scope of application: Article 76 - “Except for the provisions referred to in the second paragraph, this Regulation shall apply from 18 June 2011, subject to the 2007 Hague Protocol being applicable in the Community by that date. Failing that, this Regulation shall apply from the date of application of that Protocol in the Community”. It is not important when the 2007 Hague Protocol entered into force at the international way (1st Augusto 2013 – i.e. on the first day of the month following the expiration of three months after the deposit of the second instrument of ratification, acceptance, approval or accession): for EU Member States it applies from the date of application of Regulation n. 4/2009, i.e. to proceedings starting on or after 18 June 2011.

Material scope of application: article 1 - This Regulation shall apply to maintenance obligations arising from a family relationship, parentage, marriage or affinity. No successions The creditor and the debtor of maintenance obligation shall be individuals, not legal persons (see article 2, paras. 10 and 11: “the term ‘creditor’ shall mean any individual to whom maintenance is owed or is alleged to be owed; the term ‘debtor’ shall mean any individual who owes or who is alleged to owe maintenance”).

Regulation n. 4/2009 on maintenance obligations - jurisdiction
General provision: article 3 In matters relating to maintenance obligations in Member States, jurisdiction shall lie with: (a) the court for the place where the defendant is habitually resident, or (b) the court for the place where the creditor is habitually resident, or (c) the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties, or (d) the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.

Regulation n. 4/2009 on maintenance obligations - jurisdiction
Choice of court – article 4 The parties may agree that the following court or courts of a Member State shall have jurisdiction to settle any disputes in matters relating to a maintenance obligation which have arisen or may arise between them: (a) a court or the courts of a Member State in which one of the parties is habitually resident; (b) a court or the courts of a Member State of which one of the parties has the nationality; (c) in the case of maintenance obligations between spouses or former spouses: (i) the court which has jurisdiction to settle their dispute in matrimonial matters; or (ii) a court or the courts of the Member State which was the Member State of the spouses’ last common habitual residence for a period of at least one year. The conditions referred to in points (a), (b) or (c) have to be met at the time the choice of court agreement is concluded or at the time the court is seised. The jurisdiction conferred by agreement shall be exclusive unless the parties have agreed otherwise.

Regulation n. 4/2009 on maintenance obligations – jurisdiction
Choice of court – article 4 Limits: formal validity not applicable to maintenance obligations towards a child under the age of 18 “Seising of a court” – article 9 Lis pendens – article 12

Regulation n. 4/2009 on maintenance obligations – applicable law
Regulation n. 4/2009 substitutes the application of 1973 Hague Convention. Article 3 of the Protocol: (1) Maintenance obligations shall be governed by the law of the State of the habitual residence of the creditor, save where this Protocol provides otherwise. (2) In the case of a change in the habitual residence of the creditor, the law of the State of the new habitual residence shall apply as from the moment when the change occurs. Forum = IUS

Exception to Article 3: article 5 Special rule with respect to spouses and ex-spouses In the case of a maintenance obligation between spouses, ex-spouses or parties to a marriage which has been annulled, Article 3 shall not apply if one of the parties objects and the law of another State, in particular the State of their last common habitual residence, has a closer connection with the marriage. In such a case the law of that other State shall apply.

Article 8: Choice of law agreement (1) Notwithstanding Articles 3 to 6, the maintenance creditor and debtor may at any time designate one of the following laws as applicable to a maintenance obligation: a) the law of any State of which either party is a national at the time of the designation; b) the law of the State of the habitual residence of either party at the time of designation; c) the law designated by the parties as applicable, or the law in fact applied, to their property regime; d) the law designated by the parties as applicable, or the law in fact applied, to their divorce or legal separation

Article 8: Choice of law agreement (2) Such agreement shall be in writing or recorded in any medium, the information contained in which is accessible so as to be usable for subsequent reference, and shall be signed by both parties. (3) Paragraph 1 shall not apply to maintenance obligations in respect of a person under the age of 18 years or of an adult who, by reason of an impairment or insufficiency of his or her personal faculties, is not in a position to protect his or her interest. (4) Notwithstanding the law designated by the parties in accordance with paragraph 1, the question of whether the creditor can renounce his or her right to maintenance shall be determined by the law of the State of the habitual residence of the creditor at the time of the designation. (5) Unless at the time of the designation the parties were fully informed and aware of the consequences of their designation, the law designated by the parties shall not apply where the application of that law would lead to manifestly unfair or unreasonable consequences for any of the parties.

Regulation n. 4/2009 on maintenance obligations – recognition/enforcement
Regulation n. 4/2009 distinguishes between: A) decisions issued by MSs according 2007 Hague Protocol rules B) decisions issued by MSs according to other conflict-of-law rules A) decisions issued by MSs according 2007 Hague Protocol conflict-of-law rules European enforceability of judgments abolition of exequatur (remember regulation Brussels I bis regulation/reg. 805/2004/reg. 1896/2006/reg. 861/2007) Article 21 – Refusal or suspension of enforcement of a decision on maintenance 

 if the right to enforce the decision of the court of origin is extinguished by the effect of prescription or the limitation of action, either under the law of the Member State of origin or under the law of the Member State of enforcement, whichever provides for the longer limitation period if it is irreconcilable with a decision given in the Member State of enforcement or with a decision given in another Member State or in a third State which fulfils the conditions necessary for its recognition in the Member State of enforcement if the competent court of the Member State of origin has been seised of an application for a review of the decision of the court of origin pursuant to Article 19.  no public policy exception (green light to maintenance obligations towards same-sex partners/spouses)

B) decisions issued by MSs according to other conflict-of-law rules (for those MSs which are not part to the 2007 Hague Protocol, as the UK)  Brussels I bis Regulation, articles 39 ff.

PRACTICAL CASE Jim, a UK national, and Janet, a French national, met in Paris and lived there for two years: Jim acquired the French nationality. They lived in Spain for six years, where they also got married, in July They also have a beautiful daughter, Maria. In 2012, Jim moved to Milan for business reasons; in 2013, he decided to separate from Janet, realizing that their story as a couple had come to the end.

PRACTICAL CASE You are Jim’s lawyer. Explain to him how to proceed in order to ask for legal separation/divorce from Janet, taking into consideration the matters of parental responsibility arising concerning Maria, and maintenance obligations towards both Maria and Janet. Jim asks you, in particular: - WHERE he can start legal (separation/divorce) proceedings; - IF it is possible to concentrate the action concerning parental responsibility before the judge of the separation/divorce; - WHICH law applies to his separation/divorce; - WHICH court would be competent to decide over maintenance obligations.

“INTERNATIONAL FAMILIES” UNDER EU PRIVATE INTERNATIONAL LAW

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