The Harmonisation of Private International Law in Europe: Taking the Character out of Family Law?

Abstract

This article will examine the recent expansion of EU regulation of the private international law aspects of divorce and its consequences. The application of the regulatory framework made up of Brussels IIbis,1 the Maintenance Regulation,2 Rome III3 and the proposed Rome IV4 to a typical divorce case will be investigated to see if this unwieldy system is coherent in application. The potential for divorce cases to be atomised into individual issues will be examined. It will be asserted that the characterisation used by this system best suits the decision-making procedure under civil law traditions. The article will critically analyse how the characterisation of issues as relating to divorce, maintenance or matrimonial property is likely to function in relation to the typical divorce under English and Welsh (hereinafter English by way of shorthand), Scots and Irish law. The problem areas of characterisation will be examined and it will be shown that the diffi culties encountered in making the common law systems fi t the mould are actually substantive problems linked to the common law understanding of marriage as a publicly recognised and enforceable commitment. The tendency for common law jurisdictions to apply domestic law to cases with a foreign element is rooted in this vertical aspect of marriage. It will be concluded that EU regulation of matrimonial breakdown based on three snapshots of the divorce process fails to consider the public dimension of marriage properly and also the benefi ts of divorce as a process under one flexible and coherent domestic family law system.