Tuesday, December 28, 2010
Harding: "The Harmonisation of Private International Law in Europe: Taking the Character Out of Family Law?"
EU regulations are now in place providing for the enforcement and recognition of judgments made concerning maintenance and marital status. A draft regulation for the standardisation of the applicable law governing divorce has received a lukewarm response while a regulation for the harmonisation of applicable law to matrimonial property dispute is currently being drafted.
These various regulations have divided a typical divorce into three main issues – the legal declaration of end of marriage, maintenance issues and property concerns. However, this simply is not the case in common law countries where a ‘package solution’ is common and the issues of maintenance, matrimonial property and status of the marriage are often intertwined. These proposals fail to take into account that it is not only the substantive law of these three issues that is a matter of national identity but also how the three issues relate to each other and are balanced by the courts.