FAMILY LAW COMMITTEE MARCH 2005
Background
1. The Hague Programme – the five year action plan for Justice and Home Affairs - adopted by the European Council in November 2004, invited the European
Commission to present a Green Paper on the conflict-of-law rules in matters relating to divorce ("Rome III") in 2005. It is termed Rome III because it follows the Rome I Convention of 1980 that deals with applicable law relating to contractual obligations and Rome II, a proposal for a Regulation that deals with applicable law relating to non-contractual obligations.
2. The argument is that the increasing mobility of citizens within the European
Union has resulted in a growing number of "international" marriages where the spouses are of different nationalities, or live in different Member States or in a
Member State in which they are not nationals. The Green Paper highlights the various problems that these couples may encounter if they decide to divorce: results that do not correspond to the legitimate expectations of the citizens, lack of legal certainty, and insufficient party autonomy. It ma y also lead to “rush to court” where a spouse applies for divorce before the other spouse to prevent the courts of another Member State from acquiring jurisdiction.
3. There are currently no Community rules on applicable law in divorce matters.
Whilst Council Regulation (EC) No. 2201/2003 of 27 November 2003 ("the new
Brussels II Regulation") includes rules on jurisdiction and recognition in matrimonial matters, it does not comprise rules on applicable law.
Green Paper
4. The European Commission will publish a Green Paper on applicable law and jurisdiction in divorce matters in March 2005. This is a key part of the
European Union’s ambition to establish a common judicial area based on the principle of mutual recognition of judgments. The purpose of the Green Paper is to consult stakeholders and experts with a view to exploring possible future actions. A public hearing will take place in the second half of 2005. It is already foreseen that a Regulation will be proposed in this area.
5. The Green Paper will outline several possible options to find solutions that will enhance legal certainty and provide for a certain party autonomy. The options include the harmonisation of conflict-of-law rules, the introduction of a certain party autonomy, the revision of the jurisdiction rules of Council Regulation (EC)
No. 2201/2003, the possibility to transfer a case in certain circumstances and finally a combination of different options.

Family Law Committee Action
6. This is an important area in the development of an EU Family Law Regime and one that is not without controversy! Particularly as it addresses applicable law as well as conflict rules in relation to jurisdiction. This is a very early stage in the debate and the development of legislation and an opportune moment for the Law
Society to react. It is important to present the views of practitioners.
7. The Brussels Office will circulate the Green Paper once it is published. It is suggested that the EU Family Law Working Group is reconvened to discuss the issues and prepare a draft response. The deadline is expected to be end of
September to submit responses.
8. The response to the Green Paper on Maintenance Claims was well received by the European Commission. They have asked that we reply to this Green Paper as well as they are keen for the Common Law perspective to be understood. The
Committee could also work closely with the Department for Constitutional Affairs as they develop their line on these matters as well.
9. The EU Working Group of the Family Law Committee has already addressed some of the issue that are likely to be raised in this paper in the response to the
Tampere Conclusions – the debate on the Future of Justice and Home Affairs. In that paper it was stated that EU level rules on conflicts of jurisdiction and applicable law should not lead to approximation of substantive law given that this is the most controversial aspect of the debate on EU level action in the area of family law. The confusion and uncertainty that any attempt to harmonise or approximate substantive law between 25 Member States would elicit would actually undermine the very objective of simplification and efficiency that underpins judicial co-operation in this field. Action must be focused instead on the core areas of mutual recognition and enforcement, determination of jurisdiction, judicial co-operation and awareness raising and information sharing.
It will be worth re-stating those arguments in this debate as well.
Julia Bateman
Justice and Home Affairs Policy Advisor
Brussels
March 2005.