The Harmonisation of Private International Law in Europe: Taking the Character Out of Family Law?

Abstract

This article will examine the recent expansion of EU regulation of the private international law aspects of divorce and its consequences. The application of the regulatory framework made up of Brussels II bis, the Maintenance Regulation, Rome III and the proposed Rome IV to a typical divorce case will be investigated to see if this unwieldy system is coherent in application. The possibility for divorce cases to be atomized into individual issues will be examined.

It will be asserted that the characterization used by this system best suits the decision making procedure under civil law traditions. The article will critically analyse how the characterization of issues as relating to divorce, maintenance or matrimonial property is likely to function in relation to the typical divorce under English and Welsh, Scottish and Irish law.

The problem areas of characterization will be examined and it will be shown that the difficulties encountered in making the common law systems fit the mould are actually substantive problems linked to the common law understanding of marriage as a publicly recognized and enforceable commitment. The tendency for common law jurisdictions to apply domestic law to cases with a foreign element is rooted in this vertical aspect of marriage.

It will be concluded that EU regulation of matrimonial breakdown based on three snapshots of the divorce process fails to properly consider the public dimension of marriage and the benefits of divorce as a process under one flexible and coherent family law system.

Keywords: Conflicts of Law, Private International Law, European Family Law