The transference of family law to the Faroe Islands and the inter-territorial conflicts of laws in the Kingdom of Denmark: an appraisal

Abstract

Abstract The Danish state or Rigsfællesskab is a decentralized state composed of the Faroe Islands, Greenland and Denmark proper. Differences among the family laws in force in the three parts of the Kingdom have existed for long, as not all laws passed by the Danish parliament have been implemented in Greenland or the Faroes. Since 2018, the Faroese authorities have assumed competences to legislate on family law. This article critically explores the legal structure and functioning of distribution of competences in family law in the Danish Rigsfællesskab, the transference of the field to the Faroe Islands and inter-territorial private law issues in family matters between Denmark proper and the Faroe Islands. The topics of same-sex marriages, matrimonial property regimes and co-motherhood are particularly examined. The article identifies and discusses various incoherencies and problems of the system. The contours of the field family law and its interaction with other fields are imprecise. There is no well-stablished body to solve possible disputes on competences, which are, in practice, left to political negotiations instead of based on a clear framework. When it comes to inter-territorial private law, the uncertainty deepens. Inter-territorial private law is not a legislated matter and to what extent inter-territorial cases are treated differently from private international law ones remains unclear. There is virtually no coordination between the relevant authorities involved. Can we talk about one common inter-territorial private law for the whole Kingdom of Denmark? Can a decision from one part of the Rigsfællesskab face non-recognition in another part? Although the article argues against invoking ordre public, it acknowledges that the matter is not settled. The interaction between the family laws of Denmark proper and the Faroe Islands occurs within a framework that lacks clarity in its functioning and application. It evidences disorganization, inaction as well as little reflection on the Danish state as a decentralized state in family law. The result is legal uncertainty which negatively impacts citizens and may lead to situations of discrimination, forum shopping or limping status.