The
first step towards a single EU family law ?
Times
- 22nd February 2005
Emma
Ries on a change that will ensure that couples separate in European
harmony
IT IS not just
trade that crosses European Union borders — families do, too.
Where you live and which country’s laws apply to you can make
a big difference to your legal position. Next Monday an EU regulation
will change family law not only here but also across the EU. Denmark
is the only country that has chosen to opt out.
The change will
be good news for unmarried couples such as Karl and Carol, who live
in Britain. They were delighted when their son was born in January last
year, but shocked by the English law under which Karl was not automatically
recognised as the father. For example, if the boy fell ill and needed
medical treatment Karl might not be able to sign a consent form. As
Carol sometimes had to be away for work this was worrying, but was easily
remedied once Karl was named as the father when they registered the
birth.
It was more
worrying when they wanted to make sure that Karl was not similarly disadvantaged
in his native Denmark, or in Germany, where they have relatives. In
both countries the process was difficult because they are not married.
So bad in fact, that when their daughter was born they considered getting
married just to cut through Danish and German red tape.
Karl and Carol
discovered that you do not have to be divorcing or separating to find
that differences in family law across the EU can cause problems. When
married couples divorce, such issues become particularly acute. Immediate
questions such as where any children should live, and payment of child
maintenance, become even more complex if one parent wishes to take the
children to live in another country.
In circumstances
such as these families can get caught between two or more competing
legal systems and there can be significant differences in the outcomes.
Under French law for instance, divorced parents can be expected to pay
for their children until they have a full-time job, even if that takes
until they reach 25. Under English law the buck usually stops when children
turn 18, or finish full-time education.
For married
couples the legal system that decides financial and children issues
is dictated by where the divorce is started. This encourages some parents
to rush to start a divorce in the country of their choice in the hope
of securing a favourable legal outcome. This sort of “divorce
race” does little to promote a civilised separation process or
to protect children.
The EU has been
trying to simplify family law since 2000. In March 2001 an EU regulation
known as Brussels II, which affected family law across the EU except
in Denmark, was introduced. The revised version of Brussels II, imaginatively
known as Brussels IIA, is coming into force on March 1. The three main
changes that it brings to English family law relate to arrangements
for children.
First, it will
end the “divorce race” for married couples with children.
Instead, most decisions about children will be made according to the
law of the EU country in which the child lives, regardless of where
divorce proceedings are started. So all children will be treated the
same regardless of whether their parents married.
Secondly, it
will be easier for court decisions reached in one EU country to be recognised
and enforced in another. More widely, for the first time other EU countries
may recognise private agreements either between parents or between parents
and social services. So it should be easier for couples such as Karl
and Carol to ensure that fathers are legally recognised elsewhere in
the EU, although Denmark may still be a challenge.
Thirdly, there
are procedural changes to the way that courts resolve cases where children
are abducted by one parent and taken to another EU country.
So is this the
first step towards a single EU family law? Some countries, including
Britain, are considering ratifying the European Convention on Contact
Concerning Children, and last year the Commission of European Family
Law (a group of leading academics from across the EU) put forward principles
for a common family law for divorce, maintenance and some issues relating
to children. But there are no firm plans for these proposals to become
law.
Although there
has been talk of a Brussels III, bringing in a unified family law for
financial issues, there are still important differences throughout the
EU. This is particularly the case when it comes to property law, making
it difficult to achieve a unified law in the short term. If this is
the first step towards a single family law across the EU, we are on
the first rung of a very long ladder, but at least we are off the ground.
The author is a specialist family and collaborative lawyer at the London
firm Cumberland Ellis Peirs
The author
is a specialist family and collaborative lawyer at the London firm Cumberland
Ellis Peirs
