International couples and party autonomy– pros’ and contras’
MirelaŽupan,Associate ProfessorJ.J.Strossmayer University of OsijekCroatiaVrije Universiteit Amsterdam /Molengraaff Institute for Private LawUtrech12/13 September 2016RETHINKIN 2nd International Expert SeminarLegal Protection of the Elderly | International Families
Unification of substantive law in Europelong-standingobstacles due tocultural diversity and different traditionsof MSsomecompromisereached via soft lawUnification ofprivate international laweasier way to goon international and EU levelcore of the problem is to find the most appropriate connecting factor for applicablelaw / criteria for jurisdiction
Party autonomybecomes a fundamentalprinciple ofEU family PIL, due toincreasing mobility within EUmore flexibility in substantive lawraise of human rights notionsraise of a right of self termination of a personuncertainity in application of criteria of habitual residenceManifestationof party autonomy infamily PILChoice of law (or optio iuris)Choice of court„Evasive mobility”
- Incidence of party autonomyin EU familyPILProrogation of court for parental responsibility mattersBrussels IIaApplicable law ondivorceRome IIIProrogation of court formaintenanceMaintenance regulationApplicable law onmaintenanceHague ProtocolProrogation of court and applicable law for matrimonial property /registered partners propertyRegulation 2016/1103 and 2016/1104
-Application of party autonomy in a typicalfamily dispute setlement(divorce+ maintenance +matrimonial property)Prorogation of forafor divorcenot allowedpartieshave a variety of fora's on disposalOptio legifor divorceallowedbutonly forRome III participating MSProrogation of fora formaintenanceallowedOptio legifor maintenanceallowedbut only forstates obliged by Hague protocol of 2007Prorogation fori for matrimonialpropertyOnly participating MS as of June 2016 / dependson national lawOptio legifor matrimonialpropertyOnly participating MS as of June 2016 / depends on nationallaw
legal uncertainty to couples that entered to an agreement in one state, but later on abroad that agreement could not beenforcedtwo opposite egzamples:EnglishcourtswererejectingforeignagreementsuntilRadmacherv.Granatino, 2010]but it was repoted again inYv Y (Financial Remedy - Marriage Contract) [2014] EWHC 2920 (Fam)-weaker party protectionEstonian practice gives effect to foreign marrital agreements –protection of legitimate expectations
-Legislativeprocedure in EU leads tomultispeed EuropeSector specific regulations-Atomizedapproach of EU civil justice results withmosaicof legal regimes to be applied in one casevarious prescriptions on partyautonomy, in respect oflimitationsex anteLimitedlist of possible laws to opt fordiffers in regulations /problemswith application ofcriteria open to interpretation as habitualresidence/dual-multiplenationality / lex forilimitations that serve protection of weakerpartyvia rules on formal and material validityassurancethat we have a true consentviarules on informedchoice, obligatorylegal advice prior to conclusion, written form,/additional formal requirements onvaliditymorestringent rules of connected laws are giveneffect..........
.......materialvalidity ruleslexcausaebutspouse, in order to establish that he did not consent, may rely upon the law of the country in which he has his habitual residence at the time the court is seized if it appears from the circumstances that it would not be reasonable to determine the effect of his conduct in accordance with the law-Limitationsexpostinternationalmandatory rulesMaintenance ProtocolArt. 8/5authoritycanset aside the chosen law, if it finds thatitsapplicationleadsto manifestly unfair or unreasonable consequences for any of the partiesproperty regimeProtective rules on family homepublic policy exception
Autonomy for international couples –pro’stakesaccount of legitimate interests of cross-border couplesempowersEuropean citizens to an enhanced participation in integration processchosenlegal systems is usually one familiar to partiestheyare aware of prescribed rights andobligationsfroman economic perspective spouses have calculated relevant costs of matrimonial property division /maintenance obligations......
...........reduceslegal uncertainty and unpredictabilityifdefault rules would apply for any of the related matters (maintenance, divorce..) one faces complex variations of applicable law, cascade of connecting factors, layers of habitual residence etc.avoidsforum shoppingphenomenpartyautonomy in the choice of law act as a remedyitbalances the lack of uniform approach to the conflict-of-lawproblemsifautonomy is given in parallel for choice of court / choice of law it can result with application of domesticlawpreferablefor proceduralefficiencysystematic set of interconected rules works best in a „package”
attributeof fundamental rightsinformalchoice is granted to European citizens with two nationalities, where a person can choose the nationality that would prevail (GarciaAvello)inrespect of substantive law harmonization party autonomy in PIL could lead to convergence oflawsoptioiurisfosters competition amongstatesparadigmof regulatory competition implies lawmakers are forced to revise their laws to ensure they offer an attractive product (but it could lead to disappearance of legal traditions)
Autonomy forinternational couples–contrasRegulationsare notcoordinatedpartiescan make choices on fora/law for maintenance; for a for parental responsibility but they cannot choose fora fordivorce!listof potential fora/law to be chosen is not parallel and does not corresponds through all of theseregulationslistof laws to be chosencandeprive spouses of choosing applicable law that suits themmostin matrimonialproperty-if further choice of law for immovable islexsitus,depecageis envisaged in matrimonial propertysettlementoptioiurisof religious laws of Third countrieswith noequalityof spousespublicpolicy is a safeguard of European human rightsstandards- CJEUCase C-281/15
..................adequateprotectionmust be assured forrightsof third persons who are involved in proprietary transactionsfinanciallyweaker partycouldpromotevested rights theory (GrunkinPaul)„legal tourism“ (marriage tourism/ divorce tourism)creation of a law market - generation of European market of „family law products“-inrespect of substantive law harmonizationitcould freeze or promote differences among laws
in majority of MS no legal culture to use choice of law existsif choice of law is employed under numerous legal sources without specializedcounselperson may end up withuncoordinated choices (egz. choice of different national laws in different context)such multiple choices can imperil the balance achieved within one national family law systemsuch multiple choicescan have negativeeffects on operation of the authority that is called upon to settle the case
Is the party autonomy prescribed with current EU PIL sufficient safeguard of European citizens?Actions pro futuroEuropean PrivateInternationalLawAct?developmentof uniform substantive rules as a „MatrimoniumEuropaeum“?
Thank you for your attention!contact:mzupan@pravos.hr
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