International co-operation - challenges and opportunities

The Commission on European Family Law has been in operation for 12 years now. In August 2013, it held its 5th conference in the beautiful university city of Bonn, Germany. Entitled Family Law and Culture in Europe - Developments, Challenges and Opportunities the conference celebrated the launch of the Commission’s newest publication on the Principles of European Family Law regarding Property Relations between Spouses. This mammoth task has now been as fully developed as it can be at this time, so the Commission announced it is now turning to focus on the law relating to unmarried couples.

Areas of interest

Lawyers and academics from 33 countries attended the conference, with a good showing from the Nordic countries, from eastern European countries, and from jurisdictions as far away as Japan and China.  Highlights of the presentations and panel discussions included:

  • the principles common to all jurisdictions including, equality for spouses during marriage and afterwards, protection of the family home, mutual sharing of information, and how to reflect the needs of the children when seeking fairness
  • the principle that spouses should be free to enter into agreements regulating their marital property - in much of Europe, one lawyer (often a notary) advises both parties, often very close to the wedding day
  • whether a valuation of assets should be made on dissolution of marriage, on separation, or on the ruling of a court, if redistribution is to take place
  • the interplay between the Maintenance Regulations and Brussels II bis – the introduction of uniform European rules would help to create certainty including on issues of habitual residence, common nationality, or closest connection - each of these concepts has their supporters

Different approaches

The diversity of views and experiences made for heated debate. Those who came from jurisdictions that do not recognise same-sex registered partnerships spoke, sometimes despairingly, of problems in recognition and in reaching fairness. We heard from a speaker from the Ministry for Justice in Slovakia, whose own country is opposed to such partnerships, on the negotiations for new proposals whereby the property consequences for registered partnerships apply to both same-sex and opposite-sex registered partnerships, and not only to those registered in an EU state.

The work on non-formalised relationships (which in England and Wales we refer to as cohabitation) will be complex and challenging. Sweden has specific rules on cohabitation, but only Finland has codified compensation rules. In our own jurisdiction the average length of cohabitation is 8.5 years, and the number choosing cohabitation throughout Europe is increasingly rapidly, to the detriment of marriage it would seem. In difficult economic times, many work part time, so achieving fairness is either a very expensive and discretionary task, or there will be hardship for one party or the other unless the law can step in and (importantly) unless the applicable law is widely publicised and known to all citizens of Europe.

Delegates were encouraged to go behind the law to understand some of the trends. The Republic of Ireland had a four-fold increase in cohabitation between 1996 and 2006, in the context of compulsory four year separation before divorce can commence. People are choosing new partners before they can divorce. Some may not then get round to divorcing, which can cause problems on the death of one of the parties.

It is clear that those countries with a common law rather than a codified system are in the minority. We do need to understand the culture and thinking of our European cousins if we are properly to represent our clients, and to help to fashion the future.

Hazel Wright is a partner at Hunters

Twitter: @HKW1981

 

 

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