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David Hodson on International Family Law: UK rejects EU draft Marital Property Regimes Regulation

Date:10 AUG 2011

David HodsonThe UK has decided not to opt into the draft EU marital property regimes Regulation, published in March 2011. On 30 June 2011, the Ministry of Justice made a statement in Parliament saying the Government had decided not to opt in to the European Commission's proposals on jurisdiction, applicable law, recognition and enforcement of decisions in matters of matrimonial property regimes and the property consequences of registered partnerships. It said the Commission's proposals aim to regulate jurisdiction and applicable law as they apply both to the daily management of the property of spouses and registered partners (civil partnerships registered in the UK) and to how disputes relating to the distribution of assets in cross-border situations are handled following divorce or dissolution of the partnership, separation or death.

The broad balance of opinion from the Government's consultation was that it would not be in the UK's interests to participate in these proposals. A number of difficulties were identified. First, the concept of a matrimonial property regime does not exist in the UK in the sense understood in most other Member States. Currently our courts take a wide view of the capital resources available to the parties on divorce or dissolution (including maintenance). Many of these issues are not included in traditional matrimonial property regimes. If the UK was to opt in, it would be more difficult for our courts to deal with all aspects of the financial provision of international couples on divorce or dissolution in cases which fall within the scope of these proposals.

Concerns were raised about how the use of foreign law [ie applicable law] could drive up costs and complicate the resolution of disputes in the family courts and create uncertainty for third parties who enter into a legal relationship with the couple.

In a separate development, in an exchange of views in the European Parliament on 21 July 2011, it was said that because of issues of inter-relationship with the EU intended draft succession law and also the overlap with same sex registered partnerships, there would be a delay in the draft Property Regimes Regulation being introduced. Aside from the issue of inequality between married and same-sex registered partnerships, they seemed completely unconcerned by the other major problems identified within the UK and by family law practitioners across Europe - see my opinion piece on this dated 24 March 2011.

Finally the Law Society of England and Wales has produced an excellent Briefing Paper on the problems in practice with the draft Regulation and why the UK should not go ahead with it as presently drafted. Their representation has much furthered the best interests of the fundamental principles of English family law practice.

The problems of split trials, maintenance (needs) being decided in one EU country and sharing decided in another, will still be a primary feature of future EU cases following the introduction of the EU Maintenance Regulation on 18 June 2011, replacing Brussels I. Nevertheless huge praise is deserved to the UK government for not opting in to this proposed Regulation. The opportunity of the delay should be used to persuade the EU policy makers of better ways of dealing with EU cross border cases in the future.

David Hodson is a Partner at The International Family Law Group LLP. He acts in complex family law cases, often with an international element. 

He is an English specialist accredited solicitor, mediator, family arbitrator, Deputy District Judge at the Principal Registry of the Family Division, High Court, London and also an Australian qualified solicitor, barrister and mediator. He is a Fellow of the International Academy of Matrimonial Lawyers and author of A Practical Guide to International Family Law (Jordan Publishing, 2008). He is chair of the Family Law Review Group of the Centre for Social Justice. He can be contacted on dh@davidhodson.com.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.

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