Prorogation of Jurisdiction in Family- Law Matters: Analysis of Current National Legislation and International Treaties of Ukraine

Abstract

This article examines whether the principle of party autonomy and prorogation of jurisdiction may be applied in cross-border litigation on family-law matters. Drawing different sources, including scientific works, national legislation of Ukraine, international treaties, instruments on codification of the principles on transnational civil procedure, the paper first gives a brief overview of the history and current situation concerning regulation of prorogation of jurisdiction. Then, the author presents the results of a study of jurisdictional rules provided by Ukrainian internal legal acts and international agreements on jurisdiction in which Ukraine is a party (the Hague Conventions, bilateral and multilateral treaties on legal assistance and legal relations in civil and family relations) and draws conclusions concerning peculiarities of prorogation of jurisdiction for matters arising from family-law relations. Attention is also paid to the comparative overview of the Hague Conventions and Regulations of the European Union (Regulation No 2201/2003/EC of November 27, 2003 Concerning Jurisdiction and the Recognition and Enforcement of Judgments in Matrimonial Matters and the Matters of Parental Responsibility and Regulation No 4/2009/EC of December 18, 2008 on Jurisdiction, Applicable Law, Recognition and Enforcement of Decisions and Cooperation in Matters Relating to Maintenance Obligations). Several opinions of the European Court of Justice on some issues of prorogation of jurisdiction are noted, as well. The most remarkable changes in the prorogation agreements regulation in Ukraine took place by the entry into force in 2005 of the Law of Ukraine on Private International Law. Article 76 of the Law stipulates for the first instance when Ukrainian courts may initiate the proceedings and try cases with a foreign element the instance “if the parties chose the jurisdiction of Ukrainian courts over a case with a foreign element by their agreement”. The Hague Conventions on jurisdiction and children protection in which Ukraine is a party (Convention of October 19, 1996 on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children and Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance) concretize provisions of p. 1 Art. 76 of the Law of Ukraine on Private International and specify three variants of prorogation of jurisdiction in family-law matters. They are the following ones: (I) the respondent submits to the jurisdiction either expressly or by defending on the merits of the case without objecting to the jurisdiction; (II) jurisdiction based on the agreement in writing by the parties; (III) jurisdiction of the court seized of a divorce (legal separation or marriage annulment) is accepted for the case on parental responsibility expressly or otherwise in an unequivocal manner by the spouses and by the holders of parental responsibility.