Yearbook of Private International Law 1999

xi Doctrine Maarit JÄNTERÄ-JAREBORG Marriage Dissolution in an Integrated Europe – The 1998 European Union Convention on Jurisdiction and the Recognition and Enforcement of Judgments in

YEARBOOK OF PRIVATE INTERNATIONAL LAW

YEARBOOK OF PRIVATE INTERNATIONAL LAW

SWISS INSTITUTE OF COMPARATIVE LAW

LAUSANNE, SWITZERLAND

Sellier European Law Publishers

Sellier European Law Publishers

ISBN 978-3-935808-47-7

Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen bibliografie; detaillierte bibliografische Daten sind im Internet über http://dnb.d-nb.de abrufbar

National-© 1999 Kluwer Law International und Swiss Institute of Comparative Law

© für den Nachdruck 2007 Sellier European Law Publishers GmbH und Swiss Institute of Comparative Law

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TABLE OF CONTENTS

Foreword ix Abbreviations xi Doctrine

Maarit JÄNTERÄ-JAREBORG

Marriage Dissolution in an Integrated Europe – The 1998 European

Union Convention on Jurisdiction and the Recognition and

Enforcement of Judgments in Matrimonial Matters (Brussels II

Convention) 1 Petar ŠARČEVIĆ

Private International Law Aspects of Legally Regulated Forms

of Non-Marital Cohabitation and Registered Partnerships 37 Hans Ulrich JESSURUN D'OLIVEIRA

The Artifact of 'Sham Marriages' 49 Paul VOLKEN

How Common are the General Principles of Private International

Law? America and Europe Compared 85

National Reports

Gonzalo E PARRA-ARANGUREN

The Venezuelan Act on Private International Law of 1998 103 Alfred E VON OVERBECK

The Fate of Two Remarkable Provisions

of the Swiss Statute on Private International Law 119

HUANG Jin and LÜ Guomin

New Developments in Chinese Private International Law 135 László BURIÁN

Hungarian Private International Law 157 Karsten OTTE

The New German Conflicts Law on Parents and Children 189

viii

News from The Hague

Hans VAN LOON

The Hague Conference on Private International Law –

Work in Progress 205

Forum

Andrea BONOMI

Mandatory Rules in Private International Law – The Quest for

Uniformity of Decisions in a Global Environment 215 Vesna TOMLJENOVIĆ

Maritime Torts – New Conflicts Approach: Is It Necessary? 249

Texts, Materials and Recent Developments

Convention on Jurisdiction and the Recognition and Enforcement

of Judgments in Matrimonial Matters

('Brussels II Convention') 299 Protocol on the Interpretation by the Court of Justice

of the European Communities of the Convention on Jurisdiction

and the Recognition and Enforcement of Judgments in

Matrimonial Matters 319 Proposal for a Council Regulation (EC) on Jurisdiction

and the Recognition and Enforcement of Judgments in

Matrimonial Matters and in Matters of Parental Responsibility

for Joint Children 323 Venezuelan Act on Private International Law

(Unofficial English Translation) 341 Institute of International Law, Berlin Session, 16 – 25 August 1999

Taking Foreign Private International Law to Account 353

Book Review

Internet: Which Court Decides? Which Law Applies? –

Quel tribunal décide? Quel droit s’applique? (André LUCAS) 355

Books Received 359 Index 365

FOREWORD

As we approach the new millennium, the science of private international law is about to take a new direction in its development It is well known that the first millennium was not particularly productive as far as choice-of-law matters are

concerned, even though the professio iuris of international inheritance law dating

back to that time is still useful today The interest in private international law experienced a sudden surge at the beginning of the second millennium Currently

we are at the culmination and perhaps the turning point of the scientific discussion that began in the eleventh century as a halfhearted articulation of an incomplete sentence Ever since, the disturbing question about appropriate application of laws

in space has occupied the minds of lawyers, putting them in a restless search for the truth

In the nineteenth century, the teachings of private international law were characterized by great scientific debates about the correct questions to be asked when dealing with cases with foreign elements The twentieth century witnessed extensive codification of conflicts rules at both international and national levels, i.e., in multilateral conventions and national legislation Already called the age of globalization, the twenty-first century is expected to experience significant progress in the unification of substantive law This raises the question whether science has profited sufficiently from private international law so as to allow it to retire We do not believe so

In the law of international trade and global commercial relations, there is

an obvious need for uniform substantive rules throughout the world Nonetheless,

it appears that the families, ethnic groups and nations of this earth – from America

to the Caucasus, from the Alps to the flatlands – are neither socially nor personally ready to accept systematic uniform treatment of their mutual relations, including both property and personal matters This applies not only in regard to the ethno-cultural differences between East and West or North and South Even in the traditional federal States on both sides of the ocean and in our new economic unions as well, it is clear that we are not prepared to give up a certain independence in the nucleus of personal, family and property matters Even in trade and commerce where the need for uniform law has long been undisputed, we are still faced with a great gap between the wishes for uniform law and the reality

of unification And in areas where uniform rules already exist, one must realistically admit that legislators cannot do away with the conflict of laws technique – whether it is for the purpose of filling gaps or dealing with border areas and peripheral zones

It is the hope of the editors and publishers that the present volume will lend the field of private international law a new voice that can be heard throughout the world and used as a sounding board by all The goal of the new Yearbook is to become an international podium for the intellectual exchange of scientific and practical ideas between specialists of private international law Here the concept of private international law is to be understood in its broadest sense, encompassing

x

not only traditional conflict of laws questions but also the law of international civil procedure and international cooperation between State authorities and international organizations Of course, the scientific discussion should also include the numerous sensitive areas where efforts to unify private international law and substantive law overlap In this sense, the new Yearbook should serve as a medium for the exchange of information and ideas between the various Spartans of our discipline and in different parts of the world The intention is to publish reports on the theory and practice of private international law in China or Japan, as well as reports on judgments in the field of private international law from Argentina and Peru or on national and international conflicts legislation from East and West Europe

The editors and publishers hope, in this way, to contribute to a closer and better understanding in matters of international civil and trade law, an understanding that furthers scientific knowledge and facilitates the work of legislators and judges

Petar Šarčević Pierre Widmer Paul Volken

ABBREVIATIONS

Am J Comp L American Journal of Comparative Law

Am J Int L American Journal of International Law

Clunet Journal de droit international

I.C.L.Q International and Comparative Law Quarterly

I.L.M International Legal Materials

id idem

IPRax Praxis des internationalen Privat- und

Verfahrensrechts

OJ Official Journal

PIL Private International Law

RabelsZ Rabels Zeitschrift für ausländisches und

internationales Privatrecht Recueil des Cours Recueil des Cours de l'Académie de la Haye de droit

international = Collected Courses of The Hague Academy of International Law

Rev crit dr int pr Revue critique de droit international privé

Rev esp der int Revista española de derecho internacional

Riv dir int priv proc Rivista di diritto internazionale privato e processuale Riv dir int Rivista di diritto internazionale

RIW Recht internationaler Wirtschaft RSDIE Revue suisse de droit international et européen =

Schweizerische Zeitschrift für internationales und europäisches Recht

DOCTRINE

MARRIAGE DISSOLUTION

IN AN INTEGRATED EUROPE:

The 1998 European Union Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial

Matters (Brussels II Convention)

Maarit JÄNTERÄ-JAREBORG*

I Introduction

II Background to the Convention

III Jurisdiction in Respect of Divorce, Legal Separation and Annulment of Marriage

A A Multitude of Alternative Jurisdictional Grounds

B The Risk of Forum Shopping

IV Jurisdiction in Respect of Parental Responsibility

A The Jurisdictional Grounds

B Major Differences in Relation to Article 10 of the 1996 Hague Convention

C The Concept of Parental Responsibility

D Child Abduction

V Lis Pendens and Dependent Actions

A Dismissal of the Case in Favour of the Court First Seised

B When is a Court Seised?

VI Recognition of Judgments Relating to Marriage Dissolution

A What Is Recognized?

B Automatic Recognition

C Grounds of Non-Recognition

D The Irish Declaration

E Public Policy and Differences in the Applicable Law

VIII Relation of the Convention to Other Conventions

A An Exclusively Applicable 'Basic Convention'

B Exceptions Arising from the Transitional Provisions

* The author is professor of Private International Law and International Civil Procedure at the Uppsala University, Faculty of Law She represented Sweden in the Working Party on the Extension of the Brussels Convention to Family Law The author is grateful for the financial assistance received from the Bank of Sweden Tercentenary Foundation and to judge Hans Ytterberg vor valuable comments.

Jänterä-Jareborg

2

C Exceptions Caused by the Convention's Limited Material Scope

D Exceptions Caused by Declarations by Nordic Member States

E Treaties with the Holy See

IX Interpretation by the Court of Justice

X Concluding Remarks

A The Prospects of the Brussels II Convention

B Should the Convention Be Supplemented by other European Instruments?

I Introduction**

European integration has to a large extent been regarded as an economic affair and the legal instruments adopted have aimed primarily at securing economic freedoms The integration has, however, also far-reaching effects for an individual and his or her family life When people make use of free mobility, they often marry

or divorce across frontiers For the individuals concerned, it is essential that their family law status be recognized at least in all those States to which they have a connection Presently, several Member States are unwilling to recognize foreign divorces - and subsequent new marriages - thus causing considerable legal and social inconveniences to the parties, constituting a threat to the free movement of persons within the European Union It can be said that the demands of the market create the need to take joint action also in the field of family law Unified private international rules are a far less controversial device than the harmonization of

family law within the Union

On 28 May 1998, the Member States of the European Union signed the Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters (hereafter referred to as the Brussels II Convention) and the Protocol on its interpretation by the Court of Justice of the European

** On 4 May 1999, the Commission of the European Communities presented a proposal for a Council Regulation (EC) on jurisdiction and the recognition and enforcement

of judgments in matrimonial matters and in matters of parental responsibility for joint

children, 99/0110 (CNS): this Yearbook, pp 323-340 The Commission has incorporated

into the proposal the substance of the Brussels II Convention, save such provisions which would be incompatible with the nature of the proposed instrument and the new framework for judicial cooperation in civil matters after the entry into force of the Amsterdam Treaty

on 1 May 1999 The major changes include the following: Jurisdiction need not to be conferred to the Court of Justice since the Brussel II rules are to be incorporated into a Regulation (Art 68 of the EC Treaty) Certain provisions of the Convention referring to the United Kingdom, Ireland or Denmark have been omitted or modified to take account of the position of these States, i.e., that Title IV of the EC Treaty does not apply in the said States unless they opt for its application in the manner prescribed in the Protocol annexed to the Treaties Furthermore, no reservations can be placed in respect of the special arrangements concerning the 1931 Nordic Agreement and the Concordats with the Holy See Reference is made to the text of the Convention in this article

Marriage Dissolution in Europe

3

Communities.1 Although it is likely to take years before the Convention will enter into force or at least be applicable between several Member States,2 the event can

be regarded as historic It shows that family law matters are currently regarded as

an essential part of European integration and that the Member States, despite considerable divergencies in their domestic and international family law, are able

to agree on uniform rules dealing with cross-border situations In a press release by the Council of the European Union, the signing of the Convention was described

as a 'breakthrough - probably the most important advance since the entry into force

of the Maastricht Treaty - in the creation of a European legal area for the tangible benefit of the people of Europe.'3

The Brussels II Convention is a so-called double treaty containing rules on direct jurisdiction, as well as rules on the recognition and enforcement of foreign judgments The purpose is, firstly, to create a single jurisdictional area within the European Union in respect of proceedings relating to divorce, legal separation or marriage annulment and proceedings relating to parental responsibility initiated in connection with such matrimonial proceedings Secondly, the Convention aims at guaranteeing within the Union the free circulation of judgments given on the occasion of these proceedings

This article is a survey of the new Convention, focusing on its structure and key provisions It offers also background information on the Convention, drawing attention to those issues on which it was most difficult to reach agreement or where, in the author's opinon, the adopted solutions are disputable The relation of the Convention to other Conventions will be touched upon Finally, some tentative remarks will be made concerning how the European Community/European Union should best try to tackle family law issues connected with the internationalization

of families

II Background to the Convention

The Brussels II Convention is not the first attempt within the European Community/European Union to draft rules regulating family law matters The 1968 Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (hereafter referred to as the 1968 Brussels Convention)

1

The Convention and Protocol, as well as the Explanatory Reports are published in

OJ of the European Communities 1998, C-221 See also in this Yearbook, pp 299-322

2

In the Council Act of 28 May 1998, the Council of the European Union recommends adoption of the Convention by the Member States in accordance with their respective constitutional rules The Convention shall enter into force only after it has been adopted by all of the present 15 Member States of the Union Member States which have adopted the Convention may, however, declare it to be applicable 'in advance' in relation to other Member States which have made the same declaration (see Art 47)

3

Council of the European Union, General Secretariat, Press Release, 8853/98 (Presse 167) of Justice and Home Affairs Council Meeting of 28 May 1998

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4

covers proceedings relating to maintenance Other family law proceedings were excluded due to divergencies between the laws of the Member States.4 In 1990, a Convention was signed between the Member States on the Simplification of Procedures for the Recovery of Maintenance Payments In addition, the European Parliament has adopted a number of resolutions dealing with family law matters.5Nonetheless, the principal and practical impact of all these measures has been limited European integration has been regarded mainly as an economic affair and the legal instruments adopted have been designed to serve an economic purpose.6

As illustrated at the beginning of this article, family law issues are closely related to economic issues In the early 1990s, negotiations were initiated with the aim of extending the scope of the 1968 Brussels Convention to family law proceedings, in particular to proceedings relating to the dissolution or weakening

of the marriage bond7; a Working Party was set up in 1993 Soon the project was directed towards the drafting of an independent Convention dealing with matrimonial proceedings, but modelled on the 1968 Brussels Convention In 1995, after French and Spanish initatives, it was decided that the future Convention should also cover parental responsibility in cases when such an issue arises during matrimonial proceedings between the child's parents The legal basis for the Convention is found in Article K.3 of the Maastricht Treaty.8

4

It was feared that their inclusion would negatively affect the underlying principles

of the Convention, thus making it less effective See OJ 1979, C 59, Report by JENARD P., p

10

5

See M ARTINY D., 'Is Unification of Family Law Feasible or Even Desirable?', in:

Towards a European Civil Code, Second Revised and Expanded Edition, Nijmegen (etc.)

1998, p 154

6

OJ 1998, C 221, Report by BORRÁS A., p 28 Although family law is not explicitly mentioned in the EC Treaty or in the Treaty Establishing the European Union, family issues come into play in policies of the Community/Union such as providing social protection and raising the standard of living and quality of life In addition, there is a clear connection between family law issues and fundamental rights Fundamental rights as guaranteed by the European Convention on Human Rights include protection of the family and must be respected by the Union See Martiny D (note 5), p 158 and P INTENS W., 'Rechtvereinheitlichung und Rechtsangleichung im Familienrecht Eine Rolle für die

Europäische Union?', Zeitschrift für Europäisches Privatrecht 1998, pp 673-674

7

See OJ 1998, C 221, Report by BORRÁS A., pp 30-31 The proposal put forth by Germany in 1992 to extend the 1968 Brussels Convention to certain family matters was directly connected with problems experienced in particular between France and Germany as

a result of the lack of mutual recognition of their divorce decrees, thus creating the

possibility of competing divorce proceedings relating to the same marriage Brussels II: The

Draft Convention on Jurisdiction, Recognition and Enforcement of Judgments in Matrimonial Matters, With Evidence, House of Lords, Select Committee on the European

Communities, Session 1997-98, 5th Report, 1997, pp 5 and 8

8

Art K.3 is to be seen in conjunction with Art K.1 Point 6 of Art K.1 of the Treaty establishes judicial co-operation in civil matters as one of the matters of common interest for the purposes of achieving the objectives of the Union, in particular the free

Marriage Dissolution in Europe

5

According to EU rhetoric, a convention on matrimonial proceedings is necessary in response to requirements of European citizens and aims at 'bringing the citizen closer to the Union.' As questions put to the European Parliament illustrate, considerable inconveniences arise for all parties to 'limping marriages, i.e., where a person is considered married in one Member State and divorced in another.9 Not all Member States, however, were convinced of the necessity of the project, fearing that it could lead to a conflict of conventions or an unnecessary duplication of conventions.10 Several of the Member States which are parties to the

1970 Hague Convention on the Recognition of Divorces and Legal Separations (hereafter referred to as the 1970 Hague Convention) were initially of the opinion that that Convention already provided a sufficient tool Problems caused by 'limping marriages' within the Union could easily be resolved if all Member States

of the Union were to ratify that Convention In view of efforts by the Hague Conference on private international law to revise the 1961 Convention Concerning the Powers of Authorities and the Law Applicable in Respect of Protection of Minors, the opinion was expressed that rules relating to parental responsibility should be left to the Hague Conference While the new European Union Convention was still being negotiated, revision of the 1961 Hague Convention led

to the adoption of a new Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (hereafter refered to as the 1996 Hague Convention)

The majority of the Member States were convinced of the advantages of a new convention in a European context covering both matrimonial proceedings and parental responsibility in such proceedings Member States not parties to the 1970 Hague Convention also made it clear that they were not prepared to ratify that Convention.11 Nonetheless, to meet the concerns of the more sceptical Member States, the work of the Hague Conference had to be taken into account As a result,

movement of persons The 1968 Brussels Convention, on the other hand, is based on Art

220 of the EC Treaty which at that time was the only legal basis available

S UMAMPOUW M., 'The EC Convention on the Recovery of Maintenance: Necessity or

Excess?', in: Law and Reality, Essays on National and International Procedural Law in

Honour of Cornelis Carel Albert Voskuil, Dordrecht (etc.) 1992, pp 315-336

11

The following Member States are parties to the 1970 Hague Convention on the Recognition of Divorces and Legal Separations: Denmark, Finland, Italy, Luxembourg, the Netherlands, Portugal, Sweden and the United Kingdom

In December 1997, under the Luxembourg Presidency, a final political compromise was reached by the Council on the remaining controversial issues

III Jurisdiction in Respect of Divorce, Legal Separation and Annulment of Marriage

A A Multitude of Alternative Jurisdictional Grounds

Like the 1968 Brussels Convention, the new Convention creates a single jurisdictional area within the European Union The direct rules on jurisdiction, which must be respected by the courts of the Member States, are regarded as a major innovation of the Convention As a convention on recognition, the 1970 Hague Convention falls short in this respect.12 The Brussels II Convention, on the other hand, establishes both the competent forum and guarantees the recognition of judgments delivered in another Member State

Unlike the 1968 Convention, the new Convention establishes no general forum, but contains a list of equally ranked (alternative) jurisdictional grounds According to Article 2, paragraph 1, indent (a), jurisdiction lies with the courts of the Member State in whose territory the spouses are habitually resident,

or the spouses were last habitually resident in so far as one of them still resides there, or the respondent is habitually resident or, in the event of a joint application, either of the spouses is habitually resident, or the applicant is habitually resident if

he or she resided there for at least a year immediately before the application was made The courts of the Member State where the applicant is habitually resident shall also have jurisdiction if he or she resided there for at least six months immediately before the application was made and is either a national of that Member State or is 'domiciled' there According to indent (b), jurisdiction shall also lie with the courts of the Member State where both spouses are nationals or where both spouses have established a 'domicile' on a long term settled basis.13

12

The 1970 Hague Convention contains only indirect rules on jurisdiction These are to be considered a condition for recognition in the other Contracting States where recognition is sought, but they do not bind the courts of the State where the judgment is given

Marriage Dissolution in Europe

The grounds of jurisdiction are exclusive in the sense that the court of a Member State may found jurisdiction only on these grounds.14 When the court

lacks jurisdiction, it must decline ex officio in favour of the court of another

Member State having jurisdiction under the Convention.15 This means that a court lacking jurisdiction under the present Convention may not straight off found jurisdiction on its generally applicable rules but must always check whether, under the prevailing circumstances, the court of some other Member State would have jurisdiction under the rules of the Convention

The objective was to establish jurisdictional rules which would be flexible without sacrificing legal certainty The latter requirement demands a genuine connection between at least one of the spouses and the Member State where jurisdiction can be exercised In the Explanatory Report, Borrás describes the solution adopted in Article 2 as the result of a difficult balance.16 The content of Article 2 was, not surprisingly, one of the key issues to be settled in the political agreement of December 1997

B The Risk of Forum Shopping

The Member States of the European Union are far from united in their outlook on marriage dissolution In respect of the applicable law, the differences are sharpest between Member States which apply the law of the spouses' (common) nationality and those which apply the law of the forum, irrespective of the spouses' nationality

or habitual residence There are also striking differences in the domestic (internal) laws, which in turn have repercussions on the procedure to dissolve a marriage.17

14

See OJ 1998, C 221, Report by BORRÁS A., pp 37 and 42 The exclusive nature

of the jurisdictional grounds contained in Arts 2-6 is specified by Art 7, according to which a spouse who (a) is habitually resident in the territory of a Member State, or (b) is a national of a Member State or has his or her 'domicile' in the territory of a Member State may be sued in another Member State only in accordance with Arts 2-6

Jänterä-Jareborg

8

The multiplicity of grounds without any hierarchy between them may be particularly controversial in States with restrictive divorce policies In many cross-border situations within the European Union, the Convention offers the spouses a choice between two or more fora Since the Convention does not take account the divergencies between the choice of law rules applied to marriage dissolution in the Member States and between their domestic laws, it may in fact encourage a practice described as 'forum shopping', i.e the choice of the forum on the basis of where the parties or the plaintiff considers the case to receive the most favourable outcome

The possibility of forum shopping under the Convention raises two

interrelated questions Firstly, is there reason to deem the choice of forum so

objectionable in the field concerned that it lies in the interest of the European

Union/European Community to take further actions to prevent it? Secondly, should

measures be taken against potential abuse of the alternative jurisdictional grounds established in Article 2?

The first question seems to imply that the structure and content of Article 2

must be regarded as a failure.18 Personally, I do not find this to be the case One must bear in mind that the parties to matrimonial proceedings are ordinary people whose notions of 'proximity' and 'proper forum' may be very different from those

of companies involved in commercial transactions within the European Union, to which the 1968 Brussels Convention applies To tie spouses into a fixed hierarchy

of fora where the jurisdictional grounds may be far more restrictive than the

on the part of one of the spouses; (2) the acceptance of the breakdown of marriage as the only ground for divorce, but retaining the importance of 'fault' within the breakdown framework; (3) the liberalization of the requirements for proving that the marriage has broken down permanently, e.g., by decreasing the period of separation which must precede

a divorce; (4) the acceptance of unilateral divorce by regarding an application by one spouse

as sufficient proof of marriage breakdown; and (5) the acceptance of unilateral divorce

based on the desire of a spouse to terminate the marriage with the result that reference to

marriage breakdown is superfluous See A GELL A., 'Grounds and Procedures Reviewed', in:

Economic Consequences of Divorce, The International Perspective (edited by WEITZMAN

L.J and M ACLEAN M.), Oxford 1992, pp 54-58 The situation in the European Union is at present rather chaotic since different Member States adhere to different stages of the development described above

18

For a description of the jurisdictional grounds in Art 2, see OJ 1998, C 221,

Report by B ORRÁS A., pp 37-39 During the drafting of the Convention it was most difficult

to reach agreement on the provisions which create competence based on the petitioner's habitual residence, in particular in respect of the additional conditions relating to the length

of the habitual residence In the end, the Working Party settled for a requirement of one year immediately preceding the application and, under some fortifying requirements, six months preceding the application The latter provision could be approved only as part of the overall political compromise reached in December 1997 It was advocated especially with regard to marriages which come to an end shortly after their conclusion with the result that a spouse returns to his or her 'home state' and wants to initiate divorce proceedings there without delay

Marriage Dissolution in Europe

9

generally applicable rules, would render their access to justice more difficult and, easily undermine the Convention's legitimacy in the eyes of the public With this in mind, the inclusion of several equally ranked jurisdictional grounds must be regarded as justified

Neither can one, in this context, disregard the diversity of laws in the Member States and the related divergences of a procedural and economic nature The latter include factors such as the length and cost of the proceedings, whether they can be carried out by the parties themselves without employing advocates, whether both parties need to be present, etc.19

All these differences are likely to be of importance for the concerned parties and give them reason to carefully examine in which State to initiate the proceedings It should also be pointed out that the chosen jurisdictional grounds reflect the existing fora in the Member States but preclude the most far-reaching of the prevailing rules.20

It follows that in this context the parties' choice of forum is, at least generally speaking, fully legitimate.21 Or as cited by Professor Siehr:

'"Forum shopping" is a dirty word; but it is only a pejorative way of

saying that, if you offer a plaintiff a choice of jurisdiction, he will naturally choose the one in which he thinks his case can be most favourably presented: this should be a matter neither for surprise nor

20

An example is French law according to which French jurisdiction may always be based on either the petitioner's or the respondent's French nationality Another example is Swedish law, according to which Swedish courts have jurisdiction if the petitioner is a Swedish national and has earlier had his or her habitual residence in Sweden after reaching the age of 18

21

More problematic are those situations where a spouse uses the existence of the concurrent fora and initiates pre-emptive proceedings for the sole purpose of preventing the other spouse from starting proceedings in another Member State In this type of situation,

considering the effects of the rules on lis pendens and dependant actions (Art.11), the

Convention may well be criticized

22

See S IEHR K., 'Scherz und Ernst im Internationalen Privatrecht Gedanken zur

Vergangenheit, Gegenwart und Zukunft des Kollisionsrechts', in: Festschrift für Imre

Zajtay, Tübingen 1982, p 435, n 89

Jänterä-Jareborg

10

supplement the Convention with uniform choice of law rules also in this case.23This question will be tentatively touched upon in the concluding remarks

The second question draws attention to the fact that the new Convention is

based on mutual confidence between the Member States This includes also confidence concerning their courts' ability to disclose and prevent fraud and circumvention of the Convention From this it follows, as is also explicitly stated

in Article 16, that the courts of the Member States shall be bound by the findings

of fact on which the court of the Member State of origin based its jurisdiction and may not re-examine them.24 Connected with this question is, however, also the prospect of the spouses abusing the lack of uniform interpretation in the Member States as to the moment when a court is 'seised' with a case This question will be

touched upon in Part 5, infra

IV Jurisdiction in Respect of Parental Responsibility

A The Jurisdictional Grounds

The Brussels II Convention also covers proceedings relating to parental responsibility on condition that those proceedings are directly linked to matrimonial proceedings between the child's parents The jurisdiction of a Member State in respect of the latter is then extended to cover the former issue as well Such double competence may be considered unproblematic in situations where the child is habitually resident in the Member State whose authorities are exercising jurisdiction in the matrimonial proceedings (Art 3.1) The Convention grants, however, subject to certain conditions, jurisdiction also to authorities in the Member State where the matrimonial proceedings are being conducted although the child is not habitually resident in that State (Art 3.2)

Today it is widely accepted that jurisdiction over parental responsibility should be exercised by the authorities of the State where the child is habitually resident A decision on parental responsibility must be based on the best interests

of the child which, as a rule, can be established only by the authorities of that State

In many States, divorce as such is no longer considered an event requiring

a decision to be taken on the custody of the children The underlying philosophy is that the dissolution or weakening of the marriage bond between the child's parents,

23

One major reason for the adoption of the Convention on the Law Applicable to Contractual Obligations (the 1980 Rome Convention) was to make forum shopping in respect of contracts useless through unified choice of law rules The 1968 Brussels Convention opens in many situations the possibility to choose the forum, although to a far lesser extent than the Brussels II Convention

Marriage Dissolution in Europe

11

which is the object of the matrimonial proceedings, should not affect - at least not automatically by force of law - parental responsibility towards the child It follows that jurisdiction over parental responsibility should be determined independently

of jurisdiction in matrimonial matters Further, all children should be subject to the same set of rules, irrespective of whether they are born in or outside a marriage.25

As a result of such concerns and the fact that a new convention dealing with parental responsibility was being negotiated at the Hague Conference, not all the Member States were enthusiastic about including parental responsibility within the scope of the Convention, and some Member States were clearly against it.26 Some other Member States, on the other hand, claimed that the exclusion of such matters would greatly undermine the practical value of the Convention since in their legal systems a decision on matrimonial proceedings must always include a decision on parental responsibility These conflicting positions seemed to lead to a deadlock which could only be resolved after the adoption of the 1996 Hague Convention Decisive in this respect was that the Hague Conference, after much debate and pressure from Member States of the European Union, was able to adopt a provision (Art 10) which grants jurisdiction to authorities of the State where

jurisdiction is exercised in respect of matrimonial proceedings although the child is

habitually resident in another Contracting State.27 The European Union States could then agree on using Article 10 of the Hague Convention as a model for a provision in a European context The result can be deemed very similar to Article

10 in the 1996 Hague Convention although there are also relevant differences.28

25

For such reasons, the 1931 Inter-Nordic Convention comprising private international law provisions on marriage, adoption and guardianship has been subject to criticism in the Nordic States This Convention, which in respect of custody issues covers

only children born in the marriage, will be dealt with in Part VIII, infra It may be that the

structure of the Brussels II Convention will, in fact, petrify also the 1931 Convention to 'children in the marriage'

26

See Part II, supra

27

For the content of Art 10, see infra, note 28 Important in this respect is also Art

52.2 in the 1996 Hague Convention which specifies that the Convention shall not affect the

possibility for one or more Contracting States to conclude agreements which contain, in

respect of children habitually resident in any of the States Parties to such agreements,

provisions on matters governed by this Convention Like Art 10, this provision was specially drafted to meet the concerns of Member States of the European Union See

Convention of 19 October 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, Explanatory Report by LAGARDE P., pp 135 and 72-75

so provides, take measures directed to the protection of the person or property of such child

if (a) at the time of commencement of the proceedings, one of his or her parents habitually

resides in that State and one of them has parental responsibility in relation to the child, and

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According to the main rule of the Brussels II Convention, the courts of a Member State which, by virtue of Article 2, are exercising jurisdiction in proceedings relating to divorce, legal separation or marriage annulment, shall also have jurisdiction over a matter relating to parental responsibility over a child of both spouses, where the child is habitually resident in that Member State (Art 3.1)

As has been pointed out before, such a provision can be considered fairly unproblematic29 and it is also in line, for instance, with the underlying principles of the 1996 Hague Convention

When the child is not habitually resident in the Member State where the matrimonial proceedings are pending, the courts of that State shall have jurisdiction over such a matter if the child is habitually resident in one of the

Member States and (a) at least one of the spouses has parental responsibility over the child, and (b) the jurisdiction of the courts has been accepted by the spouses

and is in the best interests of the child (Art 3.2) Presently, in many of the Member States, jurisdiction in matrimonial proceedings gives the court also the right to examine issues on parental responsibility, irrespective of the child's foreign habitual residence In this regard, the new Convention provides an important restriction Article 3.3 establishes the conditions under which the jurisdiction conferred by paragraphs 1 and 2 ceases

B Major Differences in Relation to Article 10 of the 1996 Hague

Convention

A major difference between Article 10 of the 1996 Hague Convention and Article

3 of the Brussels II Convention is that the former only provides concurrent jurisdiction, applicable as an alternative to the other jurisdictional grounds in the

(b) the jurisdiction of these authorities to take such measures has been accepted by the

parents, as well as by any other person who has parental responsibility in relation to the child, and is in the best interests of the child (2) The jurisdiction provided for by paragraph 1 to take measures for the protection of the child ceases as soon as the decision allowing or refusing the application for divorce, legal separation or annulment of the marriage has become final, or the proceedings have come to an end for another reason.'

29

Irritating in the drafting of this provision is, however, that it refers to courts

without meaning only courts but all authorities with jurisdiction over the matters covered; see Art.1.2 where this usage of language (modelled on the 1968 Brussels Convention) is defined In the present context, this usage is problematic because it may imply that the same authorities in the Member State which exercise jurisdiction over the matrimonial proceedings also have jurisdiction over matters relating to parental responsibility The

intention is only to establish that authorities of the same Member State have jurisdiction

over both matters, with due regard for the internal distribution of competence Hence, the Convention takes account of the fact that in some Member States different authorities will

be in charge of matrimonial proceedings and issues relating to parental responsibility,

whereas in other Member States it will be the same authorities See OJ 1998, C 221, Report

by B ORRÁS A., p 40

Marriage Dissolution in Europe

on the internal laws of the Member States.30

The Brussels II Convention makes it explicit that it applies only to the

children of both spouses.31 The 1996 Hague Convention is more vague on this point The Brussels II Convention pays less regard to situations where another person other than a child's parent has parental responsibility

Thus, even if a third person were to have parental responsibility in addition

to one or both parents, that person's consent is not required as regards jurisdiction

in the State where the matrimonial proceedings take place.32 Since Article 3 is directly linked to Article 2 which establishes jurisdiction only when a spouse has a genuine connection to the 'divorce state', it was considered superfluous to require,

as in the Hague Convention, that one of the parents must habitually reside in the 'divorce state'

Neither the Hague Convention nor the Brussels Convention creates

perpetuatio jurisdictionis for the forum of the matrimonial proceedings According

to the Hague Convention, the jurisdiction of that forum ceases also in respect of parental responsibility as soon as the decision on the marriage has become final The Brussels II Convention is drafted in a more flexible manner in this respect If proceedings are still pending in respect of parental responsibility when the judgment on divorce, legal separation or marriage annulment becomes final, then the jurisdiction shall continue until the other proceedings have also led to a final judgment In this respect, the drafting of the Brussels II Convention is clearly preferable

30

Jayme and Kohler are, however, of the opinion that the existence or non-existence

of a double competence is left for the lex fori to determine See JAYME E./K OHLER Ch.,

'Europäisches Kollisionsrecht 1998: Kulturelle Unterschiede und Parallelaktionen', IPRax

1998, p 420 Borrás also claims that there is no contradiction between Art 3.2 and Art 10

of the 1996 Hague Convention: see OJ 1998, C 221, Report by BORRÁS A., p 40

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C The Concept of Parental Responsibility

The Working Party could not agree on a definition of the concept of parental responsibility As a result, this term was left to be defined by the law of the Member State in which an issue relating to parental responsibility is under consideration.33 In the Explanatory Report, Professor Borrás refers to international conventions, in particular the 1996 Hague Convention, where this concept is used and states - perhaps too optimistically - that 'it does have a degree of unifying potential.'34

There is reason to fear that the omission of a definition may create problems

in the practical application of the Convention, in particular in respect of recognition of judgments given in the other Member States.35 Discussions in the Working Party indicated that considerable differences exist between the laws of the Member States as to the content of this concept or its closest counterparts in domestic law such as 'parental authority' Reference to the use of the concept in the legal system in question provides no guidance at all in the case of Sweden and Finland where no such concept is used

Also the reference to the 'unifying effect' of the 1996 Hague Convention is problematic in this connection According to the purposes of that Convention, the term 'parental responsibility' includes parental authority or any other analogous relationship of authority determining the rights, powers and responsibilities of parents, guardians or other legal representatives in relation to the person or the property of the child.36

Since the discussions in the Working Party did not at all focus on aspects relating to the protection of the child's property, one can not claim that the intention was to include this question as well.37

36

Art 1.2 in the 1996 Hague Convention

37

Seeking guidance from the 1996 Hague Convention is problematic also because

at present it is not possible to foresee whether the Member States of the European Union will become parties to the Convention In order for a unifying effect to be achieved through the 1996 Hague Convention, it seems that a majority of the Member States would have to become parties to the Convention

Marriage Dissolution in Europe

V Lis Pendens and Dependent Actions

Article 11:

'1 Where proceedings involving the same cause of action and between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established

2 Where the proceedings for divorce, legal separation or marriage annulment not involving the same cause of action and between the same parties are brought before courts of different Member States, the court second seised shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seised is established

3 Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court

38

It could be claimed that Art 4, in fact, incorporates the 1980 Hague Convention into the Brussels II Convention since the reference embraces the 1980 Convention in whole This Article was drafted with the assumption that all Member States are parties to the 1980 Hague Convention Its application does not require that the child be abducted from another European Union State

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In that case, the party who brought the relevant action before the court second seised may bring that action before the court first seised.'

A Dismissal of the Case in Favour of the Court First Seised

The avoidance of concurrent proceedings through special rules on lis pendens and

dependent actions has been described as an innovation which in itself would have justified the Brussels II Convention.39 As in the 1968 Brussels Convention, a two-step procedure is followed In the first place, the court second seised shall of its own motion stay its proceedings until it is established that the court first seised has jurisdiction Secondly, once the court first seised has established that it has jurisdiction, the court second seised shall decline jurisdiction in favour of the former The aim is to avoid the inconveniences and expenses caused to the spouses when they have to act as parties to concurrent proceedings in different States and,

in particular, to prevent contradictory rulings

The first paragraph of Article 11 contains a traditional lis pendens rule and

is directly based on Article 21.1 of the 1968 Brussels Convention.40 It includes both matrimonial proceedings and proceedings relating to parental responsibility The second paragraph relates to so-called 'dependent actions' It has been tailored to deal with differences in legislation between the various Member States

on the admissibility of proceedings for separation, divorce or marriage annulment, and in particular with the problems caused by the Swedish and Finnish legal systems

39

See OJ 1998, C 221, Report by BORRÁS A., p 30 It should, however, also be

pointed out that the rules on lis pendens included in both the Brussels II Convention and the

1968 Brussels Convention have also been subject to much criticism and on good grounds These rules may encourage a 'race to (a friendly) court.' Once a competent court is seised, it has exclusive jurisdiction in the case irrespective of whether another court would, in fact, be

in a much better position to hear the case See L ANDO O., 'Being First On Uses and Abuses

of the Lis Pendens Under the Brussels Convention', in: Modern Issues in European Law,

Nordic Perspectives, Essays in Honour of Lennart Pålsson, The Hague 1997, pp 105-122

Such concerns were decisive also for the drafting of Art.12 in the 1970 Hague Convention,

according to which proceedings for divorce or legal separation may be suspended when

proceedings relating to the matrimonial status of either party to the marriage are pending in another Contracting State See A NTON A.E., 'The Recognition of Divorces and Legal

Separations', I.C.L.Q 1969, p 634 The Convention's rigid rules on lis pendens and

dependent actions (Art 11) can be contrasted with the more flexible approach in the

doctrine of forum non conveniens followed by courts in the United Kingdom The purpose

of this doctrine is to ensure that, to the extent possible, proceedings are brought before the courts of the most appropriate country During the drafting of the Convention, this alternative approach received very little sympathy from the leading continental Member States

40

There are some minor terminological differences The 1968 Convention uses the expression 'any court other than the court first seised', whereas the new Convention talks about 'the court second seised' This difference involves no change in substance

Marriage Dissolution in Europe

17

In both Sweden and Finland, it is no longer possible to obtain legal separation or marriage annulment.41 Divorce is the only available form of marriage dissolution even in such cases where a marriage has been concluded contrary to an absolute impediment to marriage, such as an existing marriage On the other hand, the laws of all the other Member States provide for both legal separation and marriage annulment, although the conditions may vary from Member State to Member State.42

Several Member States were initially of the opinion that the Swedish and Finnish legal systems demanded exceptions from the general rule providing that the court first seised would maintain exclusive jurisdiction In the opinion of these States, if divorce proceedings were first initiated in Sweden or Finland, but subsequent proceedings relating to marriage annulment were initiated in another Member State, the latter proceedings should prevail since they involve a cause of action that produces the most far-reaching effects Finland and Sweden were opposed to such a solution because it would have created uncertainty Even more important, it would have been an infringement of the principle that the legal systems of the Member States are regarded as having equal value

The final text of paragraph 2 of Article 11 of the Convention was part of the political compromise reached in December 1997 It not only tackles the problem caused by the two Nordic legal systems, but also applies generally to situations where different causes of action are brought before courts of different Member States In this connection, attention must also be paid to paragraph 3, in particular its second indent

The result is that if a spouse first initiates divorce proceedings in Sweden and the other spouse later initiates marriage annulment proceedings in Austria and

it is established that the Swedish court has jurisdiction, then the marriage can only

be dissolved by divorce in Sweden As a result, the Austrian court must decline jurisdiction Since Swedish courts apply forum law to marriage dissolution, the other spouse would not be helped by bringing the action for marriage annulment in the Swedish court Similarly, if a spouse first applies for divorce in Germany whose courts have jurisdiction and the other spouse then initiates proceedings for legal separation in Austria, the German court will have exclusive jurisdiction Considering the content of German law (including the choice of law rules), it may, however, be worthwhile for the other spouse to bring his/her action for legal separation in the German court

41

This has been the case in Sweden since the 1973 divorce law reform, which came into force on 1 January 1974, and in Finland since a corresponding law reform in 1987 According to the private international law of both States, forum law is applied to

matrimonial proceedings

42

Even in those States, marriages are very rarely annulled

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B When is a Court Seised?

Once the Brussels II Convention is in force, its application will be a daily event in the Member States of the Union How, then, will the moment when a court is seised be determined? This question is particularly important since the national procedural laws differ significantly on this issue In Sweden, for example, a court

is considered seised when the document instituting the proceedings is filed with the court or, in the case of a joint application, when the spouses present their application to the court In many other Member States, the relevant point of time is the date of service on the respondent

No guidance is found in the Convention or the Explanatory Report, an omission which can only be explained by the Convention's links with the 1968 Brussels Convention and a similar gap in that Convention

A revised text of the 1968 Convention is presently under preparation and

according to the plans the revision will include provisions on lis pendens and

related actions.43 Negotiations will very likely be initiated to adjust the Brussels II Convention to the revised text after its adoption

According to the Court of Justice, the determination of the moment when a court is seised is decided by the national law of the court in question.44 It is difficult to reconcile this position with the concurrent fora available in the Brussels

II Convention Even if one finds all these forum rules justifiable, as does the present author, and is in favour of giving the parties a choice of forum, measures need to be taken to prevent abuse of the different notions of the initiation of proceedings Article 11 should be supplemented in this respect before the Convention comes into force

Consider, for instance, the following: H and W, a childless couple, were last habitually resident in Italy where W still resides H, who is a Swedish citizen, has returned to Sweden and has been habitually resident there the last 12 months W

initiates divorce proceedings in Italy, but since the relevant documents for some

reason fail to be served on H, the Italian court is not 'seised' Meanwhile H, who knows about W's actions, files a summons for divorce at a Swedish court Since

this is enough to 'seise' the court under Swedish law, and the Swedish court has jurisdiction pursuant to Article 2, that court will be the 'court first seised.' Once the jurisdiction of the Swedish court has been established, the Italian court must decline jurisdiction.45 W must now take part in divorce proceedings in a foreign

1997, p 720

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19

country Not only may the outcome on the main issue be different from what it would have been if an Italian court had heard the case, but also the outcome of all ancillary claims which the Swedish court, in accordance with its generally applicable rules, has competence to examine in connection with the divorce proceedings

VI Recognition of Judgments Relating to Marriage Dissolution

A What Is Recognized?

In light of the 1970 Hague Convention, it was argued that the planned Convention would be superfluous.46 To judge whether such misgivings were justified, it is necessary to compare the rules on recognition in the Brussels II Convention with those of the 1970 Hague Convention

Only in two respects do the rules on recognition in the Brussels II Convention have a wider material scope of application than those in the 1970 Hague Convention.47 Firstly, judgments granting marriage annulment are also covered Secondly, the new Convention covers ancillary claims relating to parental responsibility In other respects, the scope is the same as in the Hague Convention All other ancillary claims concerning, for instance, the spouses' matrimonial property relations, as well as findings of fault, fall outside the scope of the Convention.48 Another similarity to the 1970 Hague Convention is that the

Brussels II Convention covers only so-called positive judgments, i.e., judgments

granting divorce, legal separation or marriage annulment.49

marriage as well as decisions not to grant divorce or legal separation Nor does it cover

findings of fault or recognition of decisions given in respect of ancillary applications Further, the Convention has no rules on direct jurisdiction Also, the content of the Convention is criticized as being too inflexible

48

In this respect it is easy to misconstrue the Convention's title and expressions such

as 'a decision relating to divorce, legal separation or marriage annulment' as implying a wider material scope of application

49

This solution could be adopted only after much debate in the Working Party

Considerations in its favour were the mandate of the Working Party to facilitate recognition

of divorces, legal separations and marriage annulments and the necessity to take account of differences in the laws of the Member States in respect of divorce and legal separation See

OJ 1998, C 221, Report by BORRÁS A., p 48

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A negative judgment refusing the application does not prevent the spouses from applying for divorce, legal separation or marriage annulment in the court of another Member State

As regards the practical application of the Convention, the court which issued the judgment will, in the majority of the cases, have based its competence

on the direct rules on jurisdiction set out in the Convention The rules on recognition, however, go beyond this and are applicable also in situations where the court of a Member State has based its jurisdiction on its generally applicable rules Since the jurisdiction of the court of the Member State of origin may not be reviewed,50 the Convention is more liberal in this respect than the 1970 Hague Convention

B Automatic Recognition

Judgments covered by the Brussels II Convention shall be recognized automatically in the other Member States without any special procedure being required (Art 14.1) To exclude all misunderstandings in this respect, the second paragraph of Article 14 specifies that

'[i]n particular no special procedure shall be required for up-dating

the civil-status records of a Member State on the basis of a judgment

relating to divorce, legal separation or marriage annulment given in another Member State, and against which no further appeal lies under the law of that Member State.'

The rule providing for automatic recognition has no counterpart in the 1970 Hague Convention and is a novelty in this field for most of the Member States of the European Union.51

The rule is based on a corresponding provision in the 1968 Brussels Convention (Art 26) As in that Convention, the new Convention also supplements the rule of automatic recognition by a provision stipulating that any

This Convention is touched upon in Part VIII, infra

Marriage Dissolution in Europe

of view of a spouse, recognition of a judgment on marriage dissolution means that

he or she is free to remarry

This effect was considered to be so self-evident as to make an explicit provision confirming it superfluous.53

C Grounds of Non-Recognition

To understand the content of automatic recognition, one also has to consider the Convention's mandatory rules on non-recognition and rules restricting the court's freedom to re-examine the judgment whose recognition is at stake

The Convention contains four grounds under which a judgment originating

in a Member State must be refused recognition in another Member State.54 This is the case when:

(a) such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought;

(b) when the judgment was given in default of appearance, if the respondent was not notified properly and in good time to arrange for his defence, unless he has accepted the judgment unequivocally; (c) if the judgment is irreconcilable with a judgment given in proceedings between the same parties in the Member State in which recognition is sought; or

(d) if it is irreconcilable with an earlier judgment given in another Member State or in a non-Member State between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition

in the Member State in which recognition is sought

52

See Art 14.3 In this respect, the Brussels II Convention is more flexible than the corresponding provision in Art 26.2 of the 1968 Convention For example, the last- mentioned Convention does not provide for a 'negative decision' on recognition

53

Art 11 in the 1970 Hague Convention contains a provision on this issue: 'A State which is obliged to recognize a divorce under this Convention may not preclude either spouse from remarrying on the ground that the law of another State does not recognize that divorce.' Moreover, the European Parliament was of the opinion that such a provision

needed to be included in the Convention European Parliament, Report on the draft

Convention on jurisdiction, recognition and enforcement of judgments in matrimonial matters, Committee on Legal Affairs and Citizens' Rights, 16 April 1998 That the issue, in

fact, is rather complicated is illustrated by A NTON A.E (note 39), pp 621 and 639-640

54

These grounds are found in Art 15.1

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These grounds of non-recognition are mandatory which means that they must be

applied ex officio by the concerned authorities.55

In other respects, there is hardly any room for refusing recognition Firstly,

the jurisdiction of the court of the Member State of origin may not be reviewed and the test of public policy, referred to above, may not be applied to the rules on

jurisdiction laid down in the Convention (Art 16) Secondly, the recognition of a

judgment relating to a divorce, legal separation or marriage annulment may not be refused because the law of the Member State in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts

(Art 17) Thirdly, under no circumstances may a judgment be reviewed as to its

substance (Art 18) Still, one is tempted to claim that there is no rule without an exception

D The Irish Declaration

Annexed to the Convention is a Declaration by Ireland, which at the outset seems

to be in direct contradiction to the rule that the jurisdiction of a Member State may not be re-examined As set forth in the Declaration:

'Ireland may maintain the jurisdiction which it has to refuse to recognise a divorce obtained in another Member State where that divorce has been obtained as a result of the party, or parties, deliberately misleading a court of the State in question in relation to its jurisdictional requirements such that recognition of the divorce would not be compatible with the Constitution of Ireland.'

This declaration will apply for a period of five years and will be renewable every five years

Ireland was the last Member State to introduce rules on divorce, an event that took place at the end of 1996 as a result of a referendum held a year earlier Compared with the divorce law in most Member States, the Irish rules are very restrictive This may be said to create the risk of spouses wanting to circumvent the jurisdiction of Irish courts.56 Considering that a basis for the Convention is the Member States' confidence in each other's courts and legal systems, the Irish Declaration can be applied only in cases where the parties have acted fraudulently, circumventing the aims of the Convention

55

The Working Party debated long as to whether the Convention's rules on recognition should be made mandatory or only facultative Considering their content, and in particular that the respondent can influence recognition by accepting the judgment unequivocally in the cases mentioned under (b), the chosen solution is natural An example

non-of unequivocal acceptance is where the respondent has remarried after the judgment was given

56

A comprehensive background to this declaration is given in OJ 1998, C 221,

Report by B ORRÁS A., p 63

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23

It is to be hoped that the courts of the Member States where the divorce proceedings are initiated discover such behaviour before ruling on the merits of the cases If the Irish Declaration were to be used other than in some singular, extraordinary cases, there is something seriously wrong with the very foundations

of the Convention.57

E Public Policy and Differences in the Applicable Law

A manifest contradiction to the public policy of the Member State in which recognition is sought constitutes one of the Convention's grounds of non-recognition (see above)

Although a corresponding provision in the 1968 Brussels Convention has not been

of any practical significance, many Member States were convinced of its necessity

in a family law convention.58

Member States with liberal divorce laws, in particular Finland and Sweden, feared on the other hand that it could be used to refuse recognition of their judgments, in particular unilateral divorces In these States, one spouse's wish to dissolve the marriage is sufficient and no investigation need be carried out to establish a permanent breakdown of the marriage.59

The Convention tries to take account of both concerns Public policy is included as one of the grounds of non-recognition (Art 15.1), whereas another provision (Art 17) stipulates that recognition may not be refused because the law

of the Member State in which such recognition is sought would not allow divorce, legal separation or marriage annulment on the same facts.60 Since both provisions

Italian Corte Suprema di Cassazione has been confronted with numerous cases where it is

claimed that it would be contrary to Italian public policy to recognize a foreign divorce based on a joint application by the spouses These cases have concerned the application of the 1970 Hague Convention As a rule, the Court has rejected such claims by pointing out

that a joint application by the spouses implies a de facto irretrievable breakdown in the

marriage See S UMAMPOUW M., Les nouvelles conventions de la Haye, leur application par

les juges nationaux, Vol V, Leyden (etc.) 1996, pp 263-269 When applying the Brussels II

Convention, the courts must be prepared to go further and respect the ideology underlying divorce judgments of other Member States

60

This provision is essentially based on Art 6.2 of the 1970 Hague Convention:

'The recognition of a divorce or legal separation shall not be refused (a) because the internal

law of the State in which such recognition is sought would not allow divorce or, as the case

may be, legal separation upon the same facts, or, (b) because a law was applied other than

that applicable under the rules of private international law of that State.'

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must be taken into account at the time of recognition, the Convention can be expected to provide adequate guarantees for the exclusion of public policy even in situations where the applicable laws on marriage dissolution in the two directly concerned Member States, i.e., the State of origin and the State of recognition, are based on contrary ideologies.61

F Non-Review as to Substance

It goes without saying that it would contravene the notion of mutual confidence between the Member States underlying the Convention and the nature of the judgments in question if the court in which recognition is sought would be allowed

to review the substance of a judgment granting divorce, legal separation or marriage annulment.62 A provision to this effect, which, of course, additionally restricts the applicability of public policy, is found in Article 18 of the Convention

VII Recognition and Enforcement of Judgments Relating to Parental Responsibility

A What Is Recognized?

Only decisions on parental responsibility given in a Member State in connection with matrimonial proceedings between the child's parents are recognized - and enforceable - under the Convention.63 The decision may be given by the same authority that exercised jurisdiction in the matrimonial proceedings or by another

authority in that State ('the divorce state') The rules on recognition, however, also

cover situations where the decision was given within the European Union but outside the 'divorce state', provided it was given in connection with matrimonial

61

According to Art 10 of the 1970 Hague Convention, Contracting States may refuse to recognize a divorce or legal separation if such recognition is manifestly incompatible with their public policy The fact that this provision follows Art 6.2, which

specifies that refusal may not be founded on differences in law (see supra note 60), seems to

give the impression that Art 10 overrides Art 6.2 Such an interpretation of the Brussels II Convention is not possible: An important restriction to public policy as a ground of non- recognition is found in Art 17 of that Convention

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25

proceedings in another State.64 As regards the application of the Convention, documents drawn up or registered as authentic instruments and settlements approved by a court in the course of the proceedings are recognized under the same conditions as judgments on parental responsibility.65

B Automatic Recognition and Grounds of Non-Recognition

While the Convention provides for automatic recognition, it also contains a list of mandatory grounds for refusal As in the case of decisions on divorce, legal separation or marriage annulment, these two contradictory elements are reconciled

by a provision giving any interested party the right to apply for a decision on whether the judgment is recognized or not.66

Article 15.2 contains an exhaustive list of the grounds of non-recognition Recognition shall be refused if:

(a) such recognition would be manifestly incompatible with the public policy of the Member State in which recognition is sought, taking into account the best interests of the child;

(b) the judgment was given, except in the case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought;

(c) where it was given in default of appearance, if the person in default was not notified properly and in good time to arrange for his defence, unless such person has accepted the judgment unequivocally;

(d) on the request of any person claiming that the judgment infringes his or her parental responsibility, if it was given without such person having been given an opportunity to be heard;

(e) if it is irreconcilable with a later judgment relating to parental responsibility given in the Member State in which recognition is sought; or

64

As in the 1968 Brussels Convention, a general characteristic of the Convention is that the Convention's rules on recognition are applicable irrespective of whether the authority of the Member State which gave the judgment based its competence on the Convention's rules on jurisdiction

65

In respect of issues on parental responsibility, authentic instruments are a device

of growing importance For instance, as a result of a law reform in Sweden in 1998, jurisdiction over questions of custody, the child's residence and visiting rights was transferred to a large extent from the courts - which always exercise jurisdiction over divorce - to local social boards The aim of the reform is to have the parents agree (in writing) and then have the agreement confirmed by the local social board

66

See supra, Part VI

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(f) if it is irreconcilable with a later judgment relating to parental responsibility given in another Member State or in the non-Member State of the habitual residence of the child, provided that the later judgment fulfils the conditions necessary for its recognition in the Member State in which recognition is sought

The Member States were long divided as to the benefit of including parental responsibility within the scope of the Convention.67 Opinions were also divided as

to whether the rules on recognition should be based on the 1968 Brussels Convention or be drafted with regard to the special characteristics of decisions on parental responsibility As in the case of jurisdiction,68 the 1996 Hague Convention provided a way out of these controversies by offering a model which all the Member States could accept Some traits of the 1968 Convention prevail, however, and may result in disputable consequences in practice

The rules of non-recognition, enumerated above, have largely been modelled on Article 23 of the Hague Convention; however, there are also important differences One difference is that the grounds of non-recognition are optional in the application of the Hague Convention, i.e., they authorize refusal of recognition but do not impose it

A further and rather alarming difference is that under the Brussels II Convention, a judgment may under no circumstances be reviewed as to its substance (Art 18).69 Such a rule may be well-founded in respect of commercial judgments, for instance, and even judgments granting the dissolution of a marital union; however, it is inappropriate in respect of judgments on custody or residence

of the child, i.e., issues which generally form the core of 'parental responsibility' It

is difficult to combine such a general, 'hard and fast' rule with the best interests of the child In this respect, the Hague Convention takes a more flexible approach making it possible, for instance, to adjust decisions on parental responsibility to changes in the circumstances.70

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27

internal law of the latter Although this is not explicitly stated in the Convention,

no other solution would be logical and justifiable.71

Otherwise, situations could arise where judgments on parental responsibility originating in other Member States would have to be put on unequal footing with similar judgments given in the Member State of enforcement It is unacceptable for a foreign judgment to be given a greater binding force than judgments originating in the Member State of enforcement The only way out in situations, where, for instance, as a result of new circumstances the foreign judgment clearly no longer corresponds with the child's best interests, would be to take recourse to public policy

This could result in frequent use of the public policy instrument, which would necessarily be regarded as a failure of the Convention Similar problems could arise when the child objects to enforcement and under the law of the Member State of enforcement has reached such age and maturity that enforcement may not take place against the child's wishes

According to Article 28 of the 1996 Hague Convention, measures taken in one Contracting State and declared enforceable in another Contracting State shall

be enforced in the latter as if they had been taken by the authorities of that State Enforcement takes place in accordance with the law of the requested State to the extent provided by such law, taking into consideration the best interests of the child In comparison, the rules on enforcement in the Brussels II Convention must

be regarded as only half-finished.72

VIII Relation of the Convention to other Conventions

A An Exclusively Applicable 'Basic Convention'

The general rule is that the Brussels II Convention, in respect of matters governed

by it, shall supersede all bilateral and multilateral Conventions existing between

71

According to Borrás, the internal law of the Member State in which exequatur has

been obtained will govern the practical measures for enforcement See OJ 1998, C 221, p

54 In my opinion, this statement is far too narrow and does not pay due regard to the opinions expressed in the Working Party, also in the revision of the drafts of the Explanatory Report

72

An explanation can be found in the fact that the political compromise of December 1997 did not include issues relating to enforcement After the compromise, the Working Party concentrated on the final drafting of the remaining provisions At this stage, there was very little interest among the Member States to reopen a discussion on enforcement Generally speaking, the model offered by the 1968 Convention was found appropriate, and it was not considered necessary to draft special provisions for the enforcement of decisions on parental responsibility Whereas the majority seemed to prefer tighter rules than those of the 1996 Hague Convention in respect of enforcement as such, the latter's solution was not explicitly rejected