The internationalisation of irish family law

AuthorGeoffrey Shannon
PositionSolicitor and author of the recently-published Child Law (Thomson Round Hall, 2005)
The “Internationalisation Of Family Law” Train Has Left The
The period of time since the summer of 2000 has been
marked by frenetic legislative activity resulting in the top down
Europeanisation of Irish family law. The legislative vehicle selected
was the regulation,” the provisions of which aredirectly and
uniformly applicable in all the participating Member States without
much delay on a specified date. Irish family law was not an area
readily associated with the European Community. Consequently,
this development came as something of a shock. It was an attempt
to legislate for the fact that 15% of marriages are binational and 6
million European Union citizens live in another Member State.
The ongoing European integration and the increasing
amount of EU regulations in private law have created a new
challenge for private law: the elaboration of a uniformEuropean
private law. In harmony with this development, the European
Parliament has, initially in 1989 and later in 1994, called for the
preparation of a European Civil Code. The response to the challenge
set by the European Parliament was the development of a new field
of legal comparative activity: the comparative research-based
drafting of European private law. Family law, due to “cultural
constraints,” has until the coming into force of the so-called now
repealed Brussels II regulation, remained almost completely outside
those activities, although without this classical field of private law
the creation of an entire body of uniform European private law can
never be completed.
According to Article 65 of the EC Treaty,the European
42 [5:1Judicial Studies Institute Journal
*Geoffrey Shannon is a solicitor and author of the recently-published Child Law (Thomson
Round Hall, 2005). He is the Irish experton the Commission on European Family Law and
is the editor of the Irish Journal of Family Law.
Community possesses legal competence for international civil
procedure, including family matters. The European Commission is
bound by the limits of Article 65 and can only take measures to
harmonise procedural family law. It cannot take measures to
harmonise substantive family law. That said, this distinction is not
easy either to make or to apply. The now repealed Brussels II
regulation on jurisdiction, recognition and enforcement of
judgments in matrimonial matters and in matters of parental
responsibility for children of both spouses was the first attempt by
the European Community to enter the family law area.
The increasing free movement of persons has resulted in an
almost identical increase of cross-border family relations. The
accepted instrument to address legal issues arising from such
relations is the use of private international law. Private international
law, however, is but an interim solution. While private international
law enables a certain degree of uniformity to be achieved, the
differences between the substantive laws of the Member States are
still maintained.
The absence of harmonised family law creates a barrier to
the free movement of persons and the realisation of a truly European
identity and an integrated European legal space. That said, there is
increasing tension between the desire to retain family law under the
internal affairs of the member states (justified by the EU principle of
subsidiarity) and the ongoing need for more uniform rules and
The European Court of Human Rights (ECt.HR) has
expanded on European family law in a number of its decisions. At
aEuropean Union level, the EC Treaty guarantees for all workers
freedom of movement. The European Courtof Justice (ECJ) has
given major impetus to a European family law by attributing
implications of a family nature to the freedom of movement. One
has yet to notice that, essentially, the European Union has no
competence for the unification of family law. Regardless, the Union
seems to have abandoned its restraint. It expressly acknowledged the
importance of the family with the adoption of the Charter of
Fundamental Rights of 7 December 2000. Significantly, at the
Laeken European Council meeting of 14 to 15 December 2001, the
2005] The Internationalisation of Irish Family Law 43
harmonisation of family law was specifically mentioned in the
recommendation to use all efforts to overcome the problems arising
from differences between legal systems.
The Treaty of Amsterdam, as interpreted by the institutions
of the European Community, has facilitated the communitarisation
of family law. In the 1997 Treaty of Amsterdam, the EU Member
States held that economic and political integration required, inter
alia,the harmonisation of both the law of property and procedural
law. Family law is identified in the Action Plan for the
implementation of the Treaty of Amsterdam.
Recent EU legislation has been drafted and adopted in the
field of divorce and parental responsibility. Steps for the progressive
abolition of the exequatur1in civil and commercial matters adopted
by the Justice and Home Affairs Council in November 2000 are to
be found in Brussels I and Brussels II.
What has been achieved? The repealed Brussels II regulation
on jurisdiction, recognition and enforcement of judgments in
matrimonial matters and in matters of parental responsibility for
children of both spouses came into force on March 1, 2001. It
sought to harmonise the private international law with regardto
jurisdiction, recognition and enforcement of judgments on divorce,
separation and marriage annulment and on parental responsibility if
issued in the context of matrimonial proceedings. It did not deal with
applicable law. The Brussels I regulation on jurisdiction, recognition
and enforcement of judgments in civil and commercial matters came
into force on March 1, 2002. As with the Brussels Convention, the
Brussels I regulation also applies to maintenance issues. The Brussels
II bis regulation repeals the Brussels II regulation and entered into
force on March 1, 2005. It extends the scope to all judgments on
parental responsibility. It takes over the rules on recognition and
enforcement from Brussels II and abolishes exequatur for two
limited categories of judgments (judgments on cross-border access
rights and judgments requiring the return of a child after abduction).
It is arguable that Brussels II bis implies a certain harmonisation of
substantive family law and is not strictly limited to private
international law.
44 [5:1Judicial Studies Institute Journal
1Exequatur means an intermediate measurewhereby a court decree is given enforceable

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