The internationalisation of irish family law

• Author: Geoffrey Shannon
• Position: Solicitor and author of the recently-published Child Law (Thomson Round Hall, 2005)
• Pages: 42-103

THE INTERNATIONALISATION OF IRISH FAMILY

LAW

GEOFFREY SHANNON*

I. INTRODUCTION

The “Internationalisation Of Family Law” Train Has Left The

Station

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repealed Brussels II regulation, remained almost completely outside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

regulations.

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

quality.