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Divorce in Europe: primed for change?

On Friday I enjoyed the company of family lawyers from around Europe. We had gathered in Paris for the opening of the law firm Cabinet CBBC (formerly the Cabinet Veronique Chauveau). With so many of us gathered in one place, the talk turned to family law – and how we are separated by our respective countries’ laws, customs and conventions.

Within the European Union, transnational family law does not operate as smoothly as one might reasonably expect, despite the determination to create a genuine area of freedom, security and justice whereby decisions taken in one member state are recognised and enforced throughout the EU.  Member states operate different divorce laws for its citizens, which may vary dramatically in other member countries. When litigants in member states look – understandably – for the smoothest way out of their domestic tangles, they can come a cropper.

It was a stylish and memorable evening (pictured above: with CBBC partner Alexandre Boiche and others). When I arrived at CBBC there were more than 100 people drinking champagne and attacking the buffet. The firm is located in the heart of Paris on Boulevard de Sébastapol, across three floors in a beautiful building just across from the courts on the Île de la Cité, next to Notre Dame Cathedral. I plunged straight in with my terrible French, which fortunately didn’t last too long, because most people took pity on me and spoke English!

I chatted to German lawyers from Stuttgart and Saarbrucken. I had a conversation with a French professor of law about French divorce law; there were diplomats present with an interest in child abduction cases.

Talking, it became clear that we continue to be divided and exercised by the laws that appear, vanish or change whenever a border is crossed. For example, Paris isn’t London. We don’t have a Civil Code; we have statute law and conventions of judge-made law.  La Manche divides us geographically (even if there is a tunnel underneath) but there is an economic, cultural and social divide that is reflected in our different law, practice and procedure.

Now that citizens of EU member states can travel freely, live in the EU country of their choice and trade anywhere within the EU, the legal challenges are being highlighted with increasing frequency. Thousands of nationals from different member states, who have decided to move elsewhere, have later found themselves caught up in family breakdowns in alien jurisdictions and cultures. I have described these challenges, along with some of the advice that we offer Stowe Family Law’s expat clients, in previous posts about international divorce.

There are ongoing attempts to make life easier for litigants across Europe: the recognition of foreign divorce decrees and foreign judgments, the enforcement of foreign judgments (in relation to maintenance and particularly in family law, dealing with children who are moved by their parents from country to country within the EU).

Even so, family law matters remain subject to unanimous agreement by every member State. Any plan to remove the national veto in relation to family law must be approved by our Parliament and every other national parliament in the EU. To obtain consensus across the board is a logistical nightmare. The surface is being scratched but the wheels grind very slowly, despite the best intentions.

To get some idea of the size and scale of the problems that are increasingly being faced, take a look at the website of the European Judicial Network, paying particular attention to civil and commercial matters

The website provides fascinating reading, setting out details for all its member states, community law and international law to boot. But don’t you get the impression that whatever they may say, however many conferences, committees, programmes, meetings, discussions, and resulting papers are produced, it isn’t working as well as it might?

Will it ever be possible for EU citizens, who can travel so freely, to no longer need to go forum shopping to take advantage of the “best” jurisdiction? For EU citizens to no longer fear moving to a different member state with “unsuitable” domestic law?

If you are planning to move to another country, think ahead. Consider signing a postnuptial agreement before you go, for example, so that if the worst does happen you do not find yourself stuck.

The will to succeed is there. I noted that in Paris, although the attendees had come from different countries and spoke different languages, our aims, concerns and enthusiasm for the practice of family law in Europe were shared.

However the challenges loom large, appear to be insurmountable and are soaked in European politics. In truth I will be surprised to see real harmonisation in family law, particularly in relation to matrimonial property. For the foreseeable future and beyond, I fear that we are limited to what we have now.

Plus ca change – plus c’est la meme chose.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known family law solicitors and divorce lawyers. She retired from Stowe Family Law in 2017.

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