INTERNATIONAL ACADEMY OF MATRIMONIAL LAWYERS EUROPEAN CHAPTER

Transcription

1 INTERNATIONAL ACADEMY OF MATRIMONIAL LAWYERS EUROPEAN CHAPTER RESPONSE ON BEHALF OF ENGLISH FELLOWS ON THE EUROPEAN COMMISSION GREEN PAPER ON CONFLICT OF LAWS IN MATTERS CONCERNING MATRIMONIAL PROPERTY REGIMES, INCLUDING THE QUESTION OF JURISDICTION AND MUTUAL RECOGNITION INTRODUCTION AND OVERVIEW This Response is made on behalf of the English Fellows of the European Chapter of the International Academy of Matrimonial Lawyers. By definition, Fellows have significant experience in dealing with international family law work, not only including cases involving other Member States in the European Union. We wish to make clear from the start that there is a wide divergence of views amongst English Fellows but we hope that this Response summarises a consensus of the majority. As a general principle, Fellows believe that it will be beneficial to couples getting divorced if there are uniform, clear and certain rules throughout Member States dealing with jurisdiction, applicable law, recognition and enforcement of matters concerning matrimonial property regimes. English Fellows strongly believe that there should be one set of jurisdictional rules, with a strict hierarchy rather than a multiple choice as in Brussels II, of jurisdictional factors for divorce, maintenance claims and division of property. This is in part because under English law maintenance and property division is inextricably linked and almost always dealt with together. Maintenance and property division is also dealt with as part of the divorce. English Fellows therefore believe that it is an error for the European Union to approach these issues in a piecemeal fashion coming up with different solutions for divorce jurisdiction in Brussels II, applicable law in Rome III, different tests altogether in the Maintenance Regulation and now even more different rules proposed in the Green Paper. Unlike responses from other associations in England, English Fellows believe that it is more responsible to accept that the intention of the European Union is for any future Property Regulation to apply in England even though England has no system of matrimonial property regime. English Fellows believe in the benefits of having greater harmonisation but not of substantive laws. English Fellows are generally in favour of party autonomy providing that there are adequate safeguards usually in the form of independent legal advice and full financial disclosure. English Fellows fear that unless the suggestions made in the Green Paper are significantly modified, those proposals will be unworkable under English law and will inevitably lead regrettably to the UK Government again not opting in to any draft Regulation /1 1

2 QUESTIONS Scope Question 1: (a) Should certain personal aspects of the marriage settlement not covered by the instruments referred to above or only the property consequences of the marriage bond be included in the future instrument? If so, which ones and why? (b) Should the future instrument apply to the property consequences of that bond arising while the parties are still living together or only when they separate or the marriage bond is dissolved? 1 (a) Only the property consequences, and maintenance issues, should be covered by the proposed Regulation. 1 (b) Only on divorce/judicial separation or nullity. Conflict of Laws Question 2: (a) What connecting factors should be used to determine the law applicable to matrimonial property regimes? And what should be the order of priority where there are several such factors (the spouse s first habitual residence of the spouses, their nationality, etc? Other connecting factors?) (b) If the future instrument applies to all the property consequences of the marriage bond, should the same criteria be envisaged both for the lifetime of the bond and for the time of its dissolution? 2 (a) There should be a hierarchy of common nationality/domicile for the UK and Ireland, and then common habitual residence as with Rome III, followed by other similar factors as under Rome III. 2 (b) Only on divorce/judicial separation or nullity /1 2

3 Question 3: Should the same connecting factors be used for all aspects of the situation covered by the applicable law or could different factors be used for different aspects ( depeçage )? If so, what situations should be taken into account? 3 The same for all aspects. Question 4: Should the automatic change of the law applicable to the matrimonial property regime be allowed in the event of changes in certain connecting factors, such as the spouses habitual residence? If so, can such change have retroactive effect? 4 Yes, but the change should only have retrospective effect if the parties both agree in the context of independent legal advice and full financial disclosure. Autonomy of the Parties Wishes Question 5: (a) Should there be the possibility for the spouses of choosing the law applicable to their matrimonial property regime? If so, what connecting factors can be taken into account to allow this choice? (b) Should a multiple choice be allowed whereby some assets would be governed by one law and others by another law? (c) Should it be possible to make or change this choice at any time, before and throughout the marriage or only at a specific time (at the time of dissolution of the marriage bond)? (d) In this case, in the event of a change of applicable law, must the change have retroactive effect? 5 (a) Yes as per the Rome III draft Regulation but only if there are more safeguards than proposed in Rome III; there needs to be independent legal advice and full financial disclosure /1 3

4 5 (b) Yes one law should apply to all assets, taking into account the law relating to immoveable property in the country it is situated. 5 (c) Yes at any time subject to the safeguards as in 5(a). 5 (d) Yes but only if the parties agree. Question 6: Should the formal requirements for the agreement be harmonised? 6 Yes, on the basis of adequate safeguards as set out in 5(a) above, on condition that the legal advice cannot be given by one notary to both parties. Rules on Jurisdiction Question 7: (a) In the event of dissolution of the regime by divorce and in the event of separation, should the Court having jurisdiction in these matters under Regulation No 2201/2003 also have jurisdiction to rule on the liquidation of the matrimonial property? (b) In the event of succession, should the Court having jurisdiction in disputes regarding the succession also have jurisdiction to rule on the liquidation of the matrimonial property? 7 (a) Yes, and also jurisdiction to deal with all maintenance issues. However, there should be the power to transfer matters to a more appropriate jurisdiction as with children issues under Brussels II. 7 (b) We believe so but as family lawyers we are not really qualified to answer. Question 8: (a) If not, which rules of international jurisdiction should be adopted, in particular for property questions arising while the couple are still living together (e.g. donations between spouses, contracts between spouses)? (b) Should there be a single general criterion or several alternative criteria as provided for by Regulation No. 2201/2003 (e.g. habitual residence, common nationality)? /1 4

5 8 (a) Not applicable 8 (b) There should be a hierarchy of criteria. Question 9: (a) Is it possible to provide for a single Court to rule on all the types of assets, moveable and immoveable, even when they are located on the territory of several Member States? (b) Where a third party is party to the dispute, should the rules of the ordinary law apply? 9 (a) Yes. 9 (b) Yes. Question 10: Is it possible to provide that the parties may choose the Court? If so, how and on the basis of what rules? 10 Yes but rules in each jurisdiction as to which Court is appropriate should apply. Question 11: Would it be useful to allow cases to be transferred from a Court in one Member State to a Court in another Member State in this respect? And if so, on what terms? 11 Yes, on the lines of Brussels II. Jurisdiction of non-judicial authorities Question 12: Should there be rules governing the jurisdiction of non-judicial authorities? If so, should grounds of jurisdiction similar to those applicable to judicial authorities be applied? To that end, could the board /1 5

6 definition of the term jurisdiction in Article 2 of Regulation (EC) No. 2201/2003 be taken as a starting point? 12 Yes but provided appropriate safeguards are met as in 5(a) above Question 13: Should the authority responsible for the liquidation and division of the property also be empowered to act when part of the property is located outside the territory in which it exercises its powers? 13 Yes. Question 14: If not, should there be a provision to the effect that certain formalities can be performed before the authorities of a Member State other than the one designated by the principal rule of conflict of jurisdiction? 14 Not applicable. Rules of Recognition and Enforcement of Judgments Question 15: Should the future European instrument abolish the exequatur for Judgements given within its scope? If not, what grounds for non-recognition of Judgements should be provided for? 15 Yes. Question 16: Could there be a provision to the effect that Judgements given in a Member State as regards the property consequences of the marriage should automatically be recognised so as to allow property /1 6

7 registers to be updated without further procedures in the other Member States? Should Article 21(2) of Regulation (EC) No. 2201/2003 be the inspiration for this? 16 Yes. Recognition and Enforcement of Non-Judicial Acts Question 17: Should the same rules as to recognition and enforcement be applied to acts established by nonjudicial authorities, such as marriage contracts, as to Judgements? If not, what rules should apply? 17 Yes with appropriate safeguards. Registration and Publicity of Matrimonial Property Regimes Question 18: How can the registration of matrimonial property regimes in the Union be improved? For example, should the adoption of a registration system in all the Member States be provided for? And how should people interested in using this system be informed of it? 18 In England and Wales this is not appropriate as we do not have such regimes. Other Forms of Union Conflict of Laws Question 19: (a) Should provision be made for specific conflict rules for the property consequences of registered partnerships? (b) Should the law applicable to the property consequences of registered partnerships be the law of the place where the partnership was registered? Other laws? (c) Should the designated law have to govern all matters at issue or should other criteria be used, such as the lex loci situationis? /1 7

8 19 (a-c) In each case as for marriage. Jurisdiction of the Judicial Authorities Question 20: Should there be rules of international jurisdiction to regulate the property consequences of registered partnerships? If so, what rules? Exclusively the Court of the place where the partnership was registered (having jurisdiction to dissolve it)? Or other criteria, such as the habitual residence of the defendant or of one of the partners within the jurisdiction, or the nationality of one or both partners? 20 Yes, as for marriage. Recognition and Enforcement of Decisions on Registered Partnerships Question 21: By what rules should Judgments given in a Member State as regards the property consequences of a registered partnership be recognised in all the Member States? 21 As for marriage. De Facto Unions Conflict of Laws Question 22: (a) Should there be specific conflict rules for property relationships based on de facto unions (non-formalised cohabitation)? If so, what rules? (b) If not, should there at least be specific rules for the effects of separation of such unions in relation to third parties (liability to third parties for the debts of such couples, rights that its members can exercise against a third party, e.g. life assurance? (c) With regard to immoveable property, should the lex loci situationis be applied exclusively? /1 8

9 22 (a) Only if legislation is introduced to give these couples rights and in those countries where there are rights as for marriage. 22 (b) Not applicable. 22 (c) As for marriage. Jurisdiction, Recognition and Enforcement of Judgments Question 23: Should there be specific rules on jurisdiction and the recognition of property relationships resulting from de facto unions? 23 As for marriage. December /1 9