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Contribution of FAFCE to the GREEN PAPER on applicable law and jurisdiction in divorce matters

Introductory comments to the Green Paper:

The Green Paper is based upon the idea that divorce should be simplified for EU citizens as much as possible, instead of focussing upon the value of marriage for developing the society and for sheltered upbringing of the children. The institution of marriage as such for this purpose is of great importance for the state and the society. This is the place where cosiderateness, identification with a collective functioning system, generosity and helpfulness, but also peaceful and reasonable clarification of conflicts can be learned in the smallest circle. The marriage, offering the protective framework of both parents, is the most appropriate place, in the perspective of FAFCE, for ensuring the wellbeing of children. A marriage gives the children the feeling of being safe and loved, it gives them the possibility to live with persons of both genders; in short: the family is a school of life. The protection of marriage is also a prerequisite of the protection of the family.

FAFCE is confident that the value of the family and, consequently, of the marriage, should possess a higher degree of importance from the societal and political perspective, than the right for self-determination of the single partners, and should be given preference in all respective regulations.
In addition to that, there is an acknowledged legal principle existing practically in all legal orders, yet especially in the field of EU, namely that concluded contracts are entitled to protection by the society, in order that they be fulfilled (pacta sunt servanda). Even if the marriage may be considered as a contract only, it deserves more protection than the will of one of the partners to leave the contract, especially since also the defence of the interests of the one who is in favour of this marriage (i.e. the partner desiring the continuation of the marriage) and the children, if any, are added to the protection of the matrimonial contract

According to formal considerations the present day legal order is right, if viewing the issues of the marriage (and accordingly of the divorce), without any direct relation to the right of children. However, from the viewpoint of sociology, each regulation of this type should examine also the impact upon the children. FAFCE believes that any new regulation of the substance always requires an examination as to how the amendment may influence not only the directly involved persons, but also their surrounding, especially those materially depending, although they may not be directly, but only indirectly involved persons.

FAFCE thinks that the question of the impact upon indirectly involved persons should be analysed prior to reforming the divorce law. We wish to point to the fact that the majority of European citizens are members of religious sodalities wherein the protection of the marriage and of the family, in spite of minor differences, is fully established in their practice and teaching. As to the submitted Green Paper, we regret that this circumstance has not been taken into consideration in the course of the reform of divorce right.

FAFCE finds that the submitted Green Book lacks balance, the simplification of divorce for the one who wishes the same is favoured against the one who would like to save the marriage, and namely already in the formulation of the question, whereas the social impacts, especially upon children, are left out of consideration.

Question 1: Are you aware of any problems that have not yet been indicated, but can occur in "international" divorce?

FAFCE sees the biggest problem of "international" divorce cases in the different understanding of the concept of marriage, what purpose it serves, which value it has.
In our opinion competence regulation can not solve this problem at all, whereas reference standards can solve them only conditionally. Through reference to a concrete legal system one of the parties of the lawsuit can be considerably disfavoured, whereas the other can benefit out of it.

Question 2: Are you advocate of the harmonisation of collision norms? Which arguments are pro and which contra such solution?

In principle the harmonisation of collision norms in the course of the European integration process is welcome, as far as this harmonisation is balanced and, in particular, if there are analogies in the national law with which it should be compatible. The inequalities in the material and formal divorce law, however, can not be singled out by this initiative. FAFCE is fully aware that this would be a task for decennia, as the development in the member countries need to be tuned in very carefully, and especially the respective analogies should be found in the national law with which it is compatible. This is particularly needed in the light of the diversified cultural traditions and religious belief in the countries.

The present day legal situation results in the problem that in the course of continuing liberialisation the partner who refuses to get divorced, or refuses to be divorced under these conditions, is not sufficiently protected. But exactly this is the issue that can not be solved by way of the mentioned proposals.
Yet during the harmonisation especially the arguments mentioned by ourselves in the introduction deserve being considered and examined.

Question 3: What linking points should be selected?

According to the opinion of FAFCE especially two fields intervene with one another, as regards the collision norms and the linking points, and namely:
a) what court is competent for the divorce:
Is it a court everywhere? Will this always remain a court? Are there not different approaches, different bodies (Notary Public, Municipal Office, other administrative authorities…) that are appointed to perform this task?
b) what law is applicable:
the law of the competent court, of the applicant, or of the opponent? This is a question of paramount importance due to the existing large differentiation. It concerns, e.g., the indicated established periods of time during which the members of the coupe have lived separately, but also the remaining prerequisites of divorce (such as the different concept of civil disruption), the di-vorce modalities and consequences (alimonies, property arrangements, hereditary right, right to split the duties, health insurance, pension claims, children…)

In detail:
a) Competent court
A harmonisation in the form that the selection of possible competent courts is not optional, but a certain competent court is cogently prescribed for the case of lawsuit (regulations in mutual agreement can be different) could contribute to legal security. However, if a given competent court can not be cogently determined for the case of a divorce process, 1) in our opinion the existing legal situation is better than the considered amendments, according to which the applicant for divorce would have the discretion of determining the court, and in the rule certainly to the detriment of the partner.
We feel that an agreement regarding the competent court can be accepted only under the pro-viso that it is combined with a concerted divorce application.

b) applicable law:
The party that does not wish divorce is normally best protected, if the applicable law is that of his/her domicile, as his/her legal security is the same as if the other party were a citizen of his home country.
However, when signing a marriage contract, or when filing an application of a concerted divorce, the interests of both parties can be better protected, if there has been an agreement as to applicable law. This should, however, be eligible only in a limited way, namely as regards the legal orders of both partners or of the competent court identified under a).

Note: 1) By way of example the court of the last usual residence can be determined as the competent court, a minimum period of time of current residence should be specified and, if this condition is not met, this can be the court of the place of wedding, according to which no partner can select where he/she wishes to be divorced and which right should be applicable.

Question 4: Should the harmonised rules cover exclusively the divorce, or also the disjunction without annulment of the matrimony and invalidation declaration of the marriage?

Issues of disjunction without annulment of the matrimony and invalidation declaration of a marriage are an intrinsic part of contract law. FAFCE does not see any necessity of harmonisation. For the invalidation declaration the right of the place where the contract has been concluded is decisive, and this should apply also to the competent court.

Question 5: Should the harmonised rules include the reservation of public order ("ordre public"), allowing the courts to exclude the application of foreign law in certain cases?

FAFCE, considering the existing different concepts of marriage in the member states, does not see the exclusion of the reservation of "ordre public" to be feasible.

Question 6: Should the parties be given the option of legal order? Which arguments are there pro and con such solution?
Question 7: Should the possibility of choice be limited to certain right? If yes, which linking points should be chosen? Should the option be limited to the law of the member states? Should the choice of law be restricted to "lex fori"?

These questions have been answered by ourselves in the framework of question 3 under b). The choice of law for FAFCE is thinkable only under the indicated prerequisite.

Question 8: Should the possibility of choice of the governing law cover exclusively the divorce or also the disjunction without annulling matrimony and the declaration of the marriage for invalid?

The possibility of choice of the law for procedures concerning the validity or invalidity of mar-riage is unacceptable for us. In this case the place of concluding the marriage should be decisive for the governing law.

Question 9: Which formal conditions should be determined for the choice of law by the parties?

If the criteria indicated by FAFCE in question 3 regarding the choice of law are taken as basis, then the agreement in the matrimonial contract (i.e. additional contract accompanying the mar-riage) is governed by the law of the place of concluding the contract (in Austria by Notary Public), for an agreement relating to a concerted application for divorce the contractual law of the court at which the application was duly filed should apply.

Question 10: If there is a plurality of grounded competence, can "race before the court" occur according to your experience?
Question 11: Should the grounds for competence be amended according to your opinion? If yes, in what form?

At the present day, especially if the competent court is decisive also for applicable law, a certain race can not be excluded, and namely a race that must necessarily cause international complications. FAFCE is well aware of this situation, and namely also in the local field and in certain legal sectors where the competence has not been clarified unambiguously. Accordingly, harmonisation is desirable ( see question 2). FAFCE, however, points specifically to the necessity that a change of competence grounds should not result in any disadvantage of the party wishing to rescue the marriage, avoiding special benefit for the party wishing to divorce that might put through its interest more easily.

Question 12: Do you think that the harmonisation of the competence rules should be strengthened and Art. 7 of regulation No 2201/2003 should be deleted, or at least restricted to cases involving no citizens of EU? If yes, how should this regulation look like?
Question 13: Which arguments are there pro or con the introduction of a possibility to agree about the competence in issues of divorce?
Question 14: Should this option be restricted to certain courts only?
Question 15: What formal requirements should be valid for the agreement of parties of the competent court?

In connection with the above questions FAFCE wishes to refer to the answer to question 3.

Question 16: Should it be possible to request the referral of a legal case to the court of another member state? Which arguments are there pro and con such solution?
Question 17: Which linking points should be decisive whether a legal case can be referred to another member state?

FAFCE considers the possibility of referral to be superfluous, if clear definitions of competence (see above) have been issued, and if the parties are given the possibility of such agreement when concluding the matrimonial contract, prior to filing the application for divorce. This applies, in particular, also for the agreement relating to the governing law.

Question 18: Which protective clauses would be necessary for guaranteeing legal security and for avoiding an overdone length of procedure?

Question 19: Which combination of modalities might be best suited for handling the described problems?
Question 20: Would you suggest a different solution for avoiding the problems described in chapter 2?

Irrespective of the fact that the perspective of the "described problems" in chapter 2 of the Green Paper has been exposed in a biased way, favouring the partner desiring the divorce, thus neglecting the interests of the other party, FAFCE can imagine a solution of the dubious issues resulting from competing authority and from multiple applicable law sections, but only under the proviso that
a) legal security is given (at any rate cogently in case of legal suit)
b) the protection of the party refusing the divorce and of the children is safeguarded to the greatest possible extent.
The necessary conditions seem to have been already suggested by ourselves in the replies to the preceding questions.

Final comment:

A more comprehensive harmonisation could, if done correctly and carefully, certainly lead to improving legal security.
Prior to any amendment of the stipulations, however, very detailed research and testing should be performed, in order to find how the envisaged changes can impact upon the legal position of all involved persons, especially the children.
For this purpose it will be certainly also necessary to work out a comparison of the respective national legal systems, which does not seem to have been made to sufficient extent.

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