FAMILY LAW IN EUROPE.
It was at the request of a local Solicitor from England and Wales to schedule a Seminar on European Family Law that made the powers that be realize that little beyond a superficial background of the different Family Law Systems of the States in Europe was known or available, but everyone was unaware of how to define European Family Law.
With the advent and expansion of the European Union and the increasing impact of European and International Instruments on the Family Law field, it became increasingly difficult for a legal practitioner, student or academician to rely purely upon the knowledge of National Family Law.
Freedom of movement within the European Union and the increasing economic, social and cultural exchanges between the States led to an increase in inter-state marriages, and unfortunately divorces.
Lawyers, approached by couples on marriage breakdown, were increasingly required to possess knowledge of different family law jurisdictions, not only in relation to the obtaining of a divorce itself, but also in relation to the different provisions for property distribution, maintenance and rights and responsibilities of children.
In addition, family law Lawyers were required to know about the free movement, rights of family members to enter and reside in the other member States of European Union, and about European social security rights and other benefits. Although Community Law had only a marginal effect on family law, there was, as a result of the supremacy and direct effect of the Community Law, scope for Lawyers to use Community Law arguments in family cases before their own National Courts.
Whilst there were some common characteristics in Family Law across Europe, there still existed major differences.
All States, for instance, recognised the principle of the best interests of the child and most States recognised that family matters are best dealt with in private. However, many significant differences still existed. For instance, a distinctly adversarial system of adjudication operated in some jurisdictions while others placed a greater emphasis on negotiations and meditation.
There were major differences in the grounds for divorce and in the way in which property was distributed upon divorce. Some States opted for systems of community of property while others based it upon distribution on need and resources, thus giving a wide discretion to the Courts.
Succession rights on death also varied widely. In some States there were automatic rights of inheritance with reserved shares of the Estate going to certain family members. In others, there were no automatic rights and a claim to a share of the Estate had to be established.
Differences also existed in respect of child maintenance. A number of States had written Constitutions in which fundamental family law rights were recognised and guaranteed. Some States were more tolerant in recognizing the need to give cohabite rights; and a number of States had recognised and or were beginning to recognize, the need to give rights to homo sexual partners.
Variations were also found in legal terminology between different States. For instance, in the context of the children, some legal systems used the concept of parental rights while others spoke increasingly of parental responsibilities or authority. A number of State used the term ‘access’ or ‘visitation’ while others used ‘contact’. Some States used the term ‘custody’ or ‘guardianship’, whilst others used the concept of ‘residence’. On several occasions the legal terms when translated into English, would lose some of the finer nuances of the meaning inherent in the different legal terminology. Therefore, as a matter of convenience, in most instances, to standardize the terminology, the epithet ‘contact’ rather than ‘access’ or ‘visitation’ was used more prominently. Similarly the standard terminology was ‘maintenance’ rather than ‘alimony’. No doubt, to some extent the translation would cause a slight change of meaning but it was at least a startup to make foreign systems of law more accessible.
The procedures and grounds for obtaining a divorce and financial relief varied substantially throughout. Europe, from the grounds themselves, to the rules on disclosure, the availability of a ‘clean break’, domestic violence and applications for property and finance after foreign divorces. In some jurisdictions, family remedies were available under the general law, where as in other states family law had developed its own sets of remedies. As a result of these differences in the divorce law, parties litigating for divorce were tempted to choose the jurisdiction which gave them the best resolution, usually the best financial resolution to the issue in dispute. Some parties, therefore, moved from one jurisdiction to another in search of what seemed to give them greater advantage. This led to protracted litigation and increased costs, and caused emotional wear and tear not only for the parties themselves but also for their children.
While International and European Conventions and the general trend in Europe towards integration and unity have increased the awareness for the need of co-operation in family matters and the need to recognize and respect the law of other European Jurisdictions, the result did not lead to any greater uniformity in the family law of different European States. The harmonization of family law, even in the near forceable future does not appear to be readily available, unless the principles of comity call upon the Judges and Lawyers to recognize and give effect to the Laws of other European States, co-operate with each other in order to reach amicable solutions to family problems and seek to bring about finality in litigation. Similarly unless the Lawyers and Courts in particular refrain from allowing parties to start proceeding in other European jurisdictions, once the claims have been settled in another State, the harmonization of family law is unlikely.
The general principles of comity between the partners of the European Union were required to encourage the trust and respect for the Judgments, Orders and the Law of other countries. This was a mandatory requirement because it would be anomalous if the family law were to fall behind the aims of European unity and integration which existed in respect of other matters.
Any treatise on family law of the member States of the European Union necessarily faces inherent problems where so many jurisdictions are included, and family law changes so fast.
There were wide variations in Family Law between one European State and another. Therefore, increasingly European and International Instruments were enacted to have an effect on Domestic Family Law. Although these Instruments did not create any uniformity of Family Law between States, but it did encourage co-operation and co-ordination, which promoted various reforms. In particular, Instruments like Brussels II and Council Regulation (EC) No. 1347/2000, had to a considerable extent, and unified the rules relating to conflict of jurisdiction, enforcement and recognition of judgments in Family Law matters throughout Europe.
Out of the large number of International Instruments, only some were of marginal significance, because they were not ratified by many States. Only some of them were widely accepted amongst the States of the European Union, and then after that, these Conventions were brought into effect and applied in different ways in each State.
The European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the European Convention on Human Rights’) was sponsored by the Council of Europe. It was a body set up after the end of the Second World War. Membership of the Council was significantly larger than that of the European Union, including a considerable number of Eastern European States.
The Convention which came into force in 1953 had been ratified by all the European Union States, contained substantive rights that a State should ensure to its individuals, along with the procedural articles which originally set up the European Commission on Human Rights and the European Court of Human Rights. The initial Convention has been augmented with a number of Protocols guaranteeing wider range of rights and amending the procedural rules. The European Convention on Human Rights had a clear and distinct effect on Domestic Family Laws.
The provisions of the Convention, Article 8 and Article 12, were particularly relevant to Family Law. Article 14 along with other Articles were also relevant.
Further Article 8 provided that, everyone has the right to respect for his private and family life. However, this had been a fruitful ground of complaint under the Convention. Further the right to respect for family life was not, however, all embracing, thus Article 8.2 provided that, the right shall not be interfered with except to the extent that interference is in accordance with the law, and to that interference is necessary in a democratic society, which is in the interests of national security, public safety or the economic well-being of the country, also for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. As per Article 8, the term ‘family’ is not easy to define and differs according to cultural values. It also includes as ‘family’, children of prior marriages, a grandparent living with the family, and unmarried, cohabiting heterosexual couple.
Article 12 of the Convention provided that men and women of marriageable age had the right to marry and have a family, in accordance to the national laws governing this right.
The Convention empowered every individual, including a child to make a complaint. Rule 47 of the Convention contained the information to do so. Guidance notes and application forms were available from the Registry and from the Court’s website. The complainant need not be a citizen of the contracting State concerned, but must be present within the jurisdiction of the State when the alleged violation occurred. Thus, an alien arriving at an airport of one of the contracting States could make a complaint. Complaints could be made by individuals or by groups and these could exercise the right of confidentiality. The name of the complainant would, however, be released to the State party.
The Convention however, laid down the following criteria to be satisfied, before a complaint could be processed:
a. A claimant must show him or herself to be a victim of a violation- The claimant must be able to show that he or she runs the risk of being directly affected as a consequence of the violation and need not show that he or she has been an actual victim.
b. Domestic remedies have been exhausted- The claimant is clear that any further legal appeal or remedy is unlikely to be successful.
c. Time limits- The Claimant must make an application within six months of the exhaustion of domestic remedies.
d. Admissibility criteria- Since the entry into force of Protocol 11, it is the Court which reviews applications and excludes those applications which do not come within the scope of the Convention, or do not satisfy items (a), (b), and (c) above. Article 35 also provided that the Court shall not deal with any petition submitted by an individual which is:
ii. Substantially the same as a matter which had already been examined by the Commission or had already been submitted to another procedure of international investigation or settlement and contains no relevant new information; or
iii. Considered by the Commission to be incompatible with the provisions of the Convention, manifestly ill-founded or an abuse of the right to petition.
Legal aid being a principle, available with the Court, was not be granted in respect of the drafting of the initial complaint. Once the Court, decided to communicate the Application to the relevant Government for written observations, it can grant legal aid only if it was of the view that the Applicant has insufficient means to pay the Lawyers’ fees and the Court considered it necessary for the proper conduct of the case. An Applicant seeking legal aid was requested to complete a financial statement, which had to be certified by the appropriate Domestic Authority. Fees were only payable to a Barrister, Solicitor or Professor of Law or other professionally qualified person of similar status.
Where the Applicant was granted legal aid in relation to proceedings before the Chamber, that grant was to continue for the purposes of Representation even before the grant Chamber.
1. Rules of the Court r.91.
2. Rules of the Court r.92.
3. Rules of the Court r.93.
Laid down that the Applicant was required to complete a financial statement, which was to be certified by appropriate Domestic Authority and thereafter, legal aid could be granted to cover travel fees, subsistence and other out of pocket expenses incurred by the Applicant and their Representatives, as well as the cost of Representation.
The complaints of the Violation of the Convention were already made to the Commission, which investigated all the complaints and determined the Admissibility, following the entry into force of Protocol 11.
Admissibility decisions were now made by the Court using similar Principles to those adopted by the Commission. The contracting State could use their Official Language for drafting application, apart from the Official Language of the Court being English and French. After the Application was accepted, the Court’s official language was used, unless the language of the Application was authorized.
Every application was assigned to any one Section of the Court. Every Section had a assigned rapporteur who was designated by the Judges. It was the duty of the rapporteur to carry out an initial examination of the case to decide if, the case was to be referred to a Committee of three judges or a Chamber of seven judges for a decision on admissibility.
A committee was of the authority to decide, by unanimous vote, whether to declare inadmissible or strike out an application without further examination. When there was no such decision, then a Chamber of the Court would consider the merits of the Application. The decisions made by the Chamber on admissibility were taken by majority vote along with the reasons, which were made public. The reports by the rapporteur were taken into account by the Chamber, in making their decisions. The merits were considered by the Chamber, while the decisions on the admissibility were made separately from that on the merits, even though the Court could have decided to deal with both set of issues together.
Cases were normally decided by a Chamber of Judge, and when a case raised a serious question of interpretation of the Convention or when there was a risk of departing from an existing case law, the case was decided by a Grand Chamber of 17 Judges. A Chamber could anytime, relinquish a case in favor of the Grand Chamber. Parties could object, within one month to such relinquishments by the Chamber. Further, whenever a case raised a serious question of interpretation or application or a serious issue of general importance, any Party could request, within three months of the delivered judgment by a Chamber, that the Case could be referred to the Grand Chamber. A panel composed of five Judges then decided on the acceptability of the Case. Decisions of Chambers, thus reached its finality only after the expiry of the three-month period or earlier, when the Parties announced that they had no intentions of requesting a referral or after a decision had been reached by the Panel on rejecting the request for referral. Decisions by the Grand Chamber were Final.
At the time of the procedure on the merits, negotiations aimed at securing a friendly settlement could be conducted through the intermediary of the Registrar. Such negotiations were to be confidential.
Author: Navin Kumar Jaggi