3 Applicable law, jurisdiction and mutual
recognition in matrimonial property regimes
| (27726)
11817/06
COM(06) 400
| Commission Green Paper on conflict of laws in matters concerning matrimonial property regimes, including the question of jurisdiction and mutual recognition
|
| Legal base | — |
| Department | Constitutional Affairs
|
| Basis of consideration | Minister's letter of 27 March 2007
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| Previous Committee Report | HC 34-xxxvii (2005-06), para 3 (11 October 2006)
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| To be discussed in Council | Not applicable
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| Committee's assessment | Legally and politically important
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| Committee's decision | Not cleared; further information requested
|
Background
3.1 The Green Paper forms part of the European Community's ongoing
programme towards the establishment of a common judicial area
based on the principle of mutual recognition of judgments. The
issue of a legal instrument at EC level relating to matrimonial
property regimes was first identified in the 1998 Vienna action
plan. The Council and the Commission adopted the programme of
measures which included matrimonial property rights at the end
of 2000. The Hague Programme, adopted by the European Council
in November 2004, called on the Commission to submit a Green Paper.
The document
3.2 The Commission Green Paper follows a previous Green Paper
on applicable law and jurisdiction on divorce matters. In the
preceding Green Paper, published in March 2005, the Commission
described the practical difficulties facing the increasing number
of "international couples who are divorced each year within
the European Union". In the case of divorce between spouses
of different nationalities, or resident in different Member States
or in a Member State of which there are different nationals, proceedings
may be initiated in more than one jurisdiction and several systems
of law may be in issue. The aim of the rules on applicable law,
often referred to as "conflict of laws rules", is to
determine which of the different laws will apply; jurisdiction
rules determine where proceedings should be initiated. In view
of the large number of divorces within the European Union, applicable
law and international jurisdiction in divorce matters affect a
large number of citizens.
3.3 The present Green Paper emphasises that there are currently
more than 5 million EU nationals who live outside their own Member
State and there were approximately 170,000 international divorces
in the Union each year, accounting for about 16% of all divorces.
The 2002 Commission study,[7]
from which the previous figures are drawn, also indicates that
there are about 2.5 million items of real property owned by spouses
and located in Member States different from their Member State
of residence. The major differences in national substantive law
governing matrimonial property regimes following divorce, together
with the variations in the cost of litigation, can have very considerable
effects on the results of property settlements after divorce.
3.4 The Green Paper notes that matrimonial property regimes have
so far been excluded from the scope of Community instruments,
and that it is "currently not possible" to harmonise
the rules of substantive law. The Green Paper accordingly examines
the issue of the conflict rules under existing regimes and explores
avenues in which these may be improved. Member States are invited
to reply to a detailed Commission questionnaire which outlines
these avenues, together with options for future legislative action
at Community level. The questions cover the following areas amongst
others:
- What connecting factors should be used to determine the law
applicable to matrimonial property regimes?
- Should the same connecting factors be used for all aspects
of matrimonial property or could different factors be used to
apply different legal regimes to different aspects?
- Should spouses be allowed to choose the law applicable to
their matrimonial property regime and, if so, under what circumstances?
- Should such choice be possible at any time, before and throughout
the marriage or only at a specific time?
- Should a similar agreement allow these spouses to choose the
jurisdiction for proceedings governing the matrimonial property?
- Should registered partnerships be subject to the same regime
as regular marriages?
The Government's view
3.5 When we originally looked at the Green Paper and decided to
hold it under scrutiny we also asked the Government to explain
under what legal base the Commission may bring forward future
legislative measures in this field and to keep us informed of
the evolution of the Government's thinking on the Commission's
ideas. The Parliamentary Under-Secretary of State at the Department
for Constitutional Affairs (Baroness Ashton) has now replied to
the Commission's request in the following terms:
"I am grateful to you and your Committee for your comments
on the Commission's Green Paper on matrimonial property regimes
following your meeting of 11 October.
"You asked about the legal basis for the Commission bringing
forward legislation pertaining to applicable law regimes governing
trans-national matrimonial property proceedings. The Green Paper
and the Commission working document published as an Annex do not
give any direct indication of the Commission's intentions in this
respect. However, if the Commission were to decide to bring forward
legislation on choice of law I would anticipate that it would
be likely to seek to rely on Articles 61(c) and 65 of the treaty
as the legal base for the measure. The Government will look very
carefully at any proposal the Commission brings forward to ensure
that it is founded on a proper legal base.
"You also asked for further information as and when the
Government's position on specific questions raised by the Commission
crystallises. I am pleased to enclose a copy of the UK response,
which I am sending to the Commission today.
"The response sets out our general approach to cross-border
family law matters and describes the subject matter of the Green
Paper. The basic problem as far as UK law is concerned is that
we do not have a matrimonial property regime as defined in the
Green Paper. This makes it very difficult to determine what the
effect of the possible measures that might flow from the Green
Paper would be. This is compounded by the failure of the Commission
to provide adequate evidence that there is a problem to be remedied.
We are therefore suggesting that the Commission examines the evidence
properly and makes a greater effort to understand the position
of the common law jurisdictions. The response offers the Commission
a detailed explanation of the domestic law at a later date. We
are planning to invite two academic experts to prepare this paper,
which I will copy to you. You may find it helpful, in due course
to hear evidence from these experts; my officials will provide
yours with their contact details when they have been appointed."
3.6 As is implied by the Minister's letter, the Response also
emphasises the Government's view that any future proposals by
the Commission "should be restricted to cross-border cases
and not affect the working of established domestic legal and administrative
systems."
Conclusion
3.7 We thank the Minister for her reply together with the Government's
response to the Commission's Green Paper. We share the Government's
cautious reception of the ideas expressed in the Commission paper.
We also share the Government's particular concern that future
EU legislation should not amount to an embryonic attempt at harmonising
national matrimonial property regimes at EU level. We expect the
Government to approach any future Commission proposals in this
area from this perspective.
3.8 Given the current uncertainty about the state of domestic
judge-made law regarding the allocation of matrimonial property
in contested divorce proceedings, we are also asking the Government
why it does not regard domestic legislation in this field as a
sensible way both of reducing present legal uncertainty and of
pre-empting possible future EU legislation in this field. We shall
keep the Green Paper under scrutiny until we have received the
Government's response together with further details in relation
to the academic paper commissioned by the Government.
7
The study in comparative law in the rules governing conflicts
of jurisdiction and laws on matrimonial property regimes and the
implementation for property issues of the separation of unmarried
couples in the Member States, 30 April 2003, ASSER-UCL Consortium
http://europa.eu.int/comm/justice_home/doc_centre/civil/studies/doc_civil_studies_en.htm.
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