16 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
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| Legal base | — |
| Department | Ministry of Justice
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| Basis of consideration | Minister's letter of 5 June 2007
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| Previous Committee Report | HC 34-xxxvii (2005-06), para 3 (11 October 2006) and HC 41-xviii (2006-07), para 3 (25 April 2007)
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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 | Cleared
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Background
16.1 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
16.2 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.
16.3 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,[43]
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.
16.4 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?
16.5 In her Explanatory Memorandum and subsequent correspondence
the Parliamentary Under-Secretary of State at the then Department
for Constitutional Affairs (Baroness Ashton of Upholland) explained
for the Government that any future legislation the Commission
may decide to bring forward on the basis of the Green Paper, would
be likely to be based on Articles 61(c) and 65 of the EC Treaty,
which are restricted to cross-border matrimonial property cases
within the EU.
16.6 We expressed support for the Government's cautious reception
of the Green Paper and, in our last Report[44]
asked the Government to comment whether, notwithstanding the wording
of Articles 61 and 65 EC Treaty and its view that any future Commission
proposal should be strictly limited to cross-border cases, domestic
legislation governing the allocation of matrimonial property in
contested divorce proceedings might not be a useful way of clarifying
the domestic law in advance of any EU proposal.
The Minister's letter
16.7 In her letter of 5 June 2007 the Minister replies as follows:
"Thank you for your communication of 25 April 2007 on this
subject. I am grateful for your comments on the Government's position.
"You asked why the Government does not consider domestic
legislation in this field a sensible way of reducing legal uncertainty
regarding the allocation of matrimonial property in contested
divorce proceedings in England and Wales and of pre-empting possible
future EU legislation in this field.
"The Green Paper is concerned with matters of private international
law, including the question of which law ought to be applied by
the court with jurisdiction in any given case. The Green Paper
proposes that instead of the applicable law being identified by
the diverse rules of private international law that exist across
Member States, there should be one set of rules for the Community
as a whole.
"If we adopted this approach, the courts in England and Wales
would have to apply the common choice of law rules to identify
the appropriate law for an individual case. In some instances
this would be the law of England and Wales. In others, it would
be the law of another country. The reform of the substantive domestic
law of ancillary relief in matrimonial proceedings would remain
a matter of national law and would not affect the operation of
the rules relating to the identification of the applicable law.
The Government has no immediate plans for reform in this area.
Finally, may I take this opportunity to inform you that the academics
appointed to prepare the paper I referred to in my letter of 27
March are Professor Elizabeth Cooke of Reading University, a family
property law specialist, and Professor Christopher Clarkson of
Leicester University, a conflict of laws specialist."
Conclusion
16.8 We thank the Minister for her letter and comments. We
note the Minister's remarks that there are no immediate plans
to reform the substantive law relating to matrimonial property
regimes.
16.9 We now clear the Green Paper from scrutiny.
43 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.
Back
44
HC 41-xviii (2006-07), para 3 (25 April 2007). Back
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