Written by Cornelia Klugman and Giulio Sabbati,
- As an EU citizen, you can freely move around the EU with your partner and/or children.
- The EU has clear rules on which national court has jurisdiction in international divorce and parental responsibility cases.
- The European Parliament supports amicable solutions through mediation in cross-border family disputes, including parental child abductions.
Helping to make freedom of movement work for international families
Cross-border aspects of family and succession law form part of EU judicial cooperation in civil matters (Article 81, Treaty on the Functioning of the EU – TFEU). The EU can adopt rules concerning conflict of laws and jurisdiction in civil matters when there are cross-border implications, as well as on recognition of judgments, though substantive family law remains a Member State competence.
Family law affects citizens’ daily lives and the Union acknowledges its importance. Already in 1989, the Court of Justice of the European Union stated that ‘respect for family life…is one of the fundamental rights’ (Commission v Germany, Case 249/86, para 10). Therefore, it is important for the EU to promote judicial cooperation in family and succession law so that people encounter fewer difficulties when they exercise their right to move freely from one Member State to another. Especially for families, it is of the utmost importance that they are not prevented from exercising their rights and that they do not suffer legal problems as a consequence of moving across borders – or simply because the partners have two different nationalities. The need for legal certainty concerns both existing families and those that have broken up, especially when children in common are involved.
The EU adopts legislation on cross-border aspects of family law by special legislative procedure (Art. 81.3 TFEU): after consulting the European Parliament, the Council (Member States’ representatives) must pass acts by unanimity. Decisions on cross-border aspects of succession law are taken in accordance with the ordinary legislative procedure. This means that the European Parliament and the Council decide on a Commission proposal on an equal footing.
Family and succession law in more detail
In practice, the EU helps (the judicial systems in) its Member States to answer questions such as those raised in the example above. The European Commission argues that: ‘if EU citizens were not allowed to lead a normal family life in the host EU country, their fundamental freedom would be seriously undermined.’ Such freedoms are also enshrined in the Universal Declaration of Human Rights (Art. 16), the European Convention of Human Rights (Art. 8) and the EU Charter of Fundamental Rights (Art. 7 and 9). Firstly, this entails being able to take your family with you when you move around the EU. According to Directive 2004/38 EC, (which amends and repeals previous legislation on the matter), EU citizens are allowed to live in another EU Member State together with their spouse or registered partner, direct descendants under 21 years of age of either or both of the spouses/partners, and dependent parents or grandparents of either partner.
Furthermore, to make the free movement of persons work, the European Parliament (EP) requested in its resolution of 25 November 2009 on the area of freedom, security and justice (point 95) that the EU improve mutual recognition of documents. The EP and the Council then adopted Regulation 2016/1191 (EU) simplifying the circulation of public documents. This means that a public document originating from one EU Member State will be recognised in another Member State without the need for additional documents certifying their authenticity.
The EU also has rules to resolve conflicts of jurisdiction in matters of divorce and parental responsibility. The ‘Brussels IIa’ Regulation of 2003 lays down procedures to establish which national court is competent, and provides rules to recognise and enforce judgements of the courts of other Member States. In the area of parental responsibility, this covers, for example:
- place of residence of the child;
- rights of contact;
- protecting the child’s property;
- placement of the child by a public authority, for example in a children’s home or foster family.
Normally, jurisdiction lies with the country of ‘habitual residence’ of the child. The court can transfer the case to a court in another Member State if this is in the child’s best interest. Parents or guardians are not allowed to unilaterally remove a child to another Member State (often in the hope that the jurisdiction on divorce or parental responsibility is more favourable for them in their own country). This is considered child abduction and will not result in a lawful change of jurisdiction. For the purpose of dealing with child abductions, all EU Member States are parties to the international Hague Convention of 1980. Judicial cooperation in the framework of the Hague Convention aims to ensure a prompt return of the child as well as mutual enforcement of judgements regarding custody and access rights.
The ‘Brussels IIa’ Regulation restates the principles of the Convention in EU law and adds certain stricter rules. The 2010 ‘Rome III’ Regulation determines (for the 16 Member States that agreed to adopt this instrument) which national law applies to divorce and legal separation cases. In the course of a divorce/separation, payments of maintenance may have to be decided, and Council Regulation 4/2009 (EU) lays down rules on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations.
When an EU resident dies, the family might be confronted with legal complications on inheritance, particularly if the deceased was living in a Member State other than their own and/or had property in other Member States or outside the EU. Each year, half a million families have to deal with cross-border successions. To solve conflicts of jurisdiction and conflicts of law in this area, Regulation 650/2012 (EU) establishes that the court of the EU country where the person was habitually resident at the time of death is competent for civil/ private law aspects. However, every person can choose which civil law should apply to their estate after they die: the law of their own country or their country of habitual residence. This choice of law does not include tax law or any other public law aspects under any circumstances. As a result, if the state in which immoveable property and other assets, including businesses, are situated has special rules applying to those assets, inheritance tax might have to be paid in that state on the assets concerned. The regulation introduces a voluntary European Certificate of Succession, which helps people prove in other Member States their positions as heirs, legatees, executors of the will, or administrators of the estate.
European added value of EU cooperation in family law
The ‘Brussels IIa’ Regulation aims to provide predictable, clear and reliable rules on which national court has jurisdiction as well as on the recognition and enforcement of judgements in other Member States. These rules concern matrimonial matters and matters of parental responsibility. A study prepared for the European Commission explains that the aims of the regulation can be better achieved at EU level than at a purely national level, and that, therefore, it has a clear European added value.
There are about 16 million international couples in the EU and 140 000 divorces per year (about 13 % of total divorces in the EU) have an ‘international’ element. These numbers show the importance of having European rules on the competent court and the applicable law in divorce or legal separation.
The European Parliament’s September 2017 resolution on the implementation of the Mediation Directive points out that mediation has particular value in family law and especially in child abduction cases. Amicable solutions are likely to last longer than court orders, and besides the child’s residence, they can also address many other issues that fail to be considered in a judicial setting. Family mediation also saves families time and money: a 2007 study from the UK concluded that families paid an average of €1 100 for mediation that lasted 110 days, while court proceedings cost more than twice as much, namely €2 458, and took 435 days on average.
The European added value of the EP Mediator for International Parental Child Abduction lies in the unique and privileged position the Mediator holds as a Member of the European Parliament. He/she has the ability to promote and advocate for mediation across the entire European Union, so that where possible, such costs can be avoided. She/he is also well placed to recognise the legal and administrative problems that can arise and can intervene diplomatically if necessary. Besides, the Mediator can use his/her power as an MEP to influence legislation and policy making on cross-border family matters. The different pieces of EU legislation quoted above do not exist in isolation from each other. Under certain conditions set out in Articles 12 and 15 of ‘Brussels IIa’, the judge competent for a divorce case also addresses questions of parental responsibility, maintenance payments and the matrimonial regime.
Room for improvement of justice concerning children and families
Numerous cases have been identified where the application of different jurisdictional rules established in various EU family law regulations has led to court proceedings in different Member States, despite Articles 12 and 15 of ‘Brussels IIa’. The European Commission has proposed a ‘recast’ of this regulation to increase the efficiency of child-related proceedings. It includes concentrating jurisdiction for child abduction cases in specialised courts and abolishing the ‘exequatur’ procedure, which would make all decisions covered by the regulation directly enforceable in other Member States. Not having to apply to courts to declare a decision (for example on custody rights and child protection orders) enforceable in other Member States would save families involved in cross-border litigation between €1 100 and €4 000. The recast proposal also includes an obligation to hear the child in judicial proceedings, especially in child abduction cases. The report of the European Parliament’s Committee on Legal Affairs (rapporteur: Tadeusz Zwiefka, EPP, Poland), among other elements, stresses the role of mediation and explains how to better conduct hearings involving children. Parliament as a whole is due to consider the matter in January 2018.
The EU’s Fundamental Rights Agency considers in general that justice needs to be more child-friendly: in civil procedures such as divorce cases, children are not always informed or heard in an age-appropriate way. Moreover, staff are not always trained to deal with children in potentially vulnerable situations, for example children with disabilities or with an ethnic minority background.
The current EU Treaties do not permit the establishment of common EU rules on marriage, parentage or adoption. For example, Member States’ laws differ fundamentally on same-sex marriage, assisted reproduction, surrogate pregnancies, gay parenthood and the inscription of children conceived through incest in the public register. These differences also have an influence on fields that are covered by EU legislation: when a will stipulates that the surviving spouse (for example of the same sex) shall inherit, there is a problem if the marriage is recognised in one Member State, but not in another.
A European Added Value Assessment by the European Parliamentary Research Service on cross-border recognition of adoptions explains the gaps in current legal provisions for adoptive families: there is currently no legal protection or guarantee that domestic adoptions lawfully carried out in one EU Member State will be recognised in another. This legal uncertainty impedes the free movement of adoptive families around the EU. The annual costs associated with the lack of EU rules on adoptions are estimated at €1.65 million.
Read this briefing on ‘A Europe for mobile and international families‘ on the Think Tank pages of the European Parliament.