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Matrimonial and parental judgments: jurisdiction, recognition and enforcement (Brussels IIa)

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Matrimonial and parental judgments: jurisdiction, recognition and enforcement (Brussels IIa)

SUMMARY OF:

Regulation (EC) No 2201/2003 - jurisdiction, recognition and enforcement of matrimonial and parental judgments

SUMMARY

A single legal instrument to help international couples resolve disputes, involving more than one country, over their divorce and the custody of their children.

WHAT DOES THE REGULATION DO?

It sets out:

rules determining which court is responsible for dealing with matrimonial matters and parental responsibility in disputes involving more than one country

rules making it easier to recognise and enforce judgments issued in one EU country in another

a procedure to settle cases in which a parent abducts a child from one EU country and takes them to another.

It does not deal with substantive family law matters. These are the responsibility of individual EU countries.

KEY POINTS

The Regulation applies to civil law cases involving more than one country that relate to:

divorce

legal separation

the annulment of a marriage

any aspect of parental responsibility (such as custody and access rights).

One of its main objectives is to uphold children’s right to maintain contact with both parents, even if they are separated or live in different EU countries.

The Regulation does not apply to cases concerning:

grounds for divorce or the law applicable in divorce cases

divorce-related issues such as maintenance

establishing and challenging paternity

judgments on adoption and the associated preparatory measures

annulling or revoking an adoption

a child’s first and last names

the independence of children from their parents or guardians

trusts and inheritance

measures taken in response to criminal acts committed by children.

Matrimonial matters

There is no general rule on jurisdiction in matrimonial matters. To determine the EU country where the courts have the right to rule on a case, the Regulation instead sets out 7 alternative grounds for jurisdiction based on the spouses’ nationality or on where they normally live.

Parental responsibility

It applies to:

rights of custody and rights of access

guardianship, curatorship and similar legal arrangements

the designation and functions of any person or body in charge of the child or the child's property, or which represents or assists the child

placing the child in a foster family or in institutional care

measures to protect the child, covering the administration, conservation or use of his or her property.

Such matters generally come under the jurisdiction of the courts in the EUcountry where the child usually lives . If it is impossible to establish where a child usually lives (as in the case of refugees), the EU country where the child is present automatically assumes jurisdiction.

Child abduction

The Regulation also lays down rules to settle cases in which children are unlawfully removed or kept.

The courts of the EU country where the child normally lived immediately before abduction continue to have jurisdiction until the child lives mainly in another EU country.

Recognition

Under the Regulation, any EU country must automatically recognise judgments given in another EU country on matrimonial and parental responsibility matters. Recognition can be refused if, for example:

recognition is clearly contrary to public policy

the defendant did not receive the document initiating proceedings in time to arrange legal defence (in cases where the judgment was given in the defendant's absence)

recognition is incompatible with another judgment given between the same parties.

For judgments concerning parental responsibility, recognition can also be refused if:

the child was not given an opportunity to be heard

on the request of a person claiming that the judgment infringes his or her parental responsibility, the judgment was issued without this person having been given an opportunity to be heard.

Enforcement

A judgment on the exercise of parental responsibility enforceable in the EU country where it was issued can be enforced in another EU country when it has been declared enforceable there at the request of any interested party. However, no declaration is required for judgments granting rights of access or concerning the return of a child that have been certified by the original judge in accordance with the Regulation.

Cooperation between central authorities in parental responsibility cases

Each EU country designates a central authority (or more than one) whose duties include:

helping parents seeking the return of a child abducted by another parent and taken to another EU country

promoting information-sharing on national law and procedures;

helping courts communicate with each other

helping parents or guardians seeking to recognise and enforce decisions

seeking to resolve disagreements between parents or guardians through alternative means such as mediation.

Central authorities meet regularly as members of the European Judicial Network in civil and commercial matters.

Existing agreements

As a general rule, this regulation replaces existing conventions on the same matters involving 2 or more EU countries. In relations between EU countries, it takes precedence over certain multilateral conventions:

1961 Hague Convention (law applicable to protection of minors)

1967 Luxembourg Convention (recognition of decisions on marriage);

1970 Hague Convention (recognition of divorces)

1980 European Convention (custody of children)

1980 Hague Convention (civil aspects of international child abduction).

With regard to the Hague Convention of 19 October 1996 on parental responsibility and measures for the protection of children, the regulation is fully applicable if the child normally lives in an EU country.

Exemptions and special provisions

Denmark is not a party to the Regulation and is therefore not bound by it.

Special provisions are applicable to:

the relations of Finland and Sweden with Denmark, Iceland and Norway as regards the application of the Nordic Marriage Convention of 6 February 1931

relations between the Holy See and Portugal, Italy, Spain and Malta.

More information:

ACT

Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000

REFERENCES

Act

Entry into force

Deadline for transposition in the Member States

Official Journal

Regulation (EC) No 2201/2003

1.8.2004

-

OJ L 338, 23.12.2003, pp. 1-29

Amending act(s)

Entry into force

Deadline for transposition in the Member States

Official Journal

Regulation (EC) No 2116/2004

3.1.2005

-

OJ L 367, 14.12.2004, pp. 1-2

RELATED ACTS

Council Decision 2010/405/EU of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation (Official Journal L 189, 22.7.2010, pp. 12-13)

Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation (Official Journal L 343, 29.12.2010, pp. 10-16)

Commission Decision 2012/714/EU of 21 November 2012 confirming the participation of Lithuania in enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 323, 22.11.2012, pp. 18-19)

Commission Decision 2014/39/EU of 27 January 2014 confirming the participation of Greece in enhanced cooperation in the area of the law applicable to divorce and legal separation (OJ L 23, 28.1.2014, pp. 41-42)

last update 24.09.2015

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