Family Law (International)
by Kurt Siehr
1. Law of persons
The international law of persons centres around four issues: capacity, gender, name and declaration of death.
a) Capacity to have rights and obligations
The capacity of a natural person to have rights and obligations (capacité, capacità giuridica, Rechtsfähigkeit) is governed—if there is a conflicts rule at all—either by the lex fori (eg Art 34(1) Swiss PIL Statute) or by personal law (eg § 12 Austrian PIL Statute; Art 7 EGBGB; Art 5 Greek Civil Code; Art 26 Portuguese Código civil). This law determines in particular at what time capacity begins and ends (eg with brain death or heart death). Other questions of life (nasciturus in succession cases) or death (survivorship) are decided according to the law governing succession. Since the abolition of slavery, the capacity to have rights and obligations has not played an important role in the law of conflicts.
b) Capacity to exercise rights and obligations
Questions of capacity of a natural person to exercise rights and obligations (capacité, capacità di agire, Geschäftsfähigkeit) are mostly raised as a preliminary question (connecting factors (PIL)). As far as there is still the possibility of a declaration of incapacity (in Germany Art 8 EGBGB has been abolished with the abolition of a declaration of incapacity in the Bürgerliches Gesetzbuch (BGB)), it is governed by special conflict rules. Normally the law on personal status applies (§ 15 Austrian PIL Statute), and for the incapacitation of foreigners a certain proximity to the incapacitating state is necessary (eg Art 8 Greek Civil Code). Foreign incapacitations are recognized according to the normal rules on recognition of foreign decisions.
In addition to the general rule on capacity, some statutes on private international law (PIL) include four additional rules.
(1) A capacity once acquired under the applicable law is not lost by a later change of nationality or domicile (eg Art 7(2) EGBGB; Art 35 s 2 Swiss PIL Statute). The adage semel maior semper maior governs.
(2) Marriage can establish majority (eg Art 45a Swiss PIL Statute) or this question is left to the law governing the personal status of a person (eg Art 7(1) sentence 2 EGBGB).
(3) For normal legal transactions which take place in the same state between present persons, a person cannot claim to lack capacity under his/her foreign personal law if the person had capacity under the law at the place of transaction (eg Art 12 EGBGB; Art 23(2) Italian PIL Statute; Art 28(1) Portuguese Código civil; Art 36 Swiss PIL Statute).
(4) It is expressly stated or provided by special clauses that personal law only applies to general capacity and not to special capacities such as the capacity to marry (eg Art 27 Italian PIL Statute), the capacity to commit a tort (eg Art 15(a) Rome II Regulation) or the capacity to dispose of the estate by testament (eg Art 94 Swiss PIL Statute).
As far as can be seen, there is no conflicts rule on the question of the gender of a person. In former times gender was a simple fact which could be established by sexual characteristics. This is different today. A person may feel that they belong to the other gender and may apply for a medical change of sex. If this person is a foreigner, the question arises as to which law should be applied. According to case law of several states (most recently, see the German Federal Constitutional Court, judgment of 18 July 2006, BverfGE 116, 243) the change of gender has to be acknowledged if the applying person is domiciled in the state of the change, even if his/her state of nationality does not allow such a change. If gender has been changed, marriage with a person of her/his former sex cannot be disallowed (ECtHR No 28957/95 − Goodwin v United Kingdom; ECJ Case C-117/01 – KB v National Health Service Pensions Agency  ECR I-541).
The law applicable to names will be treated under law of names.
e) Declaration of disappearance and of death
The declaration of disappearance and death of a natural person (déclaration d’absence, dichiarazioe de scomparsa, Verschollenheitserklärung) is treated in different manners. Either local jurisdiction is fixed first and then the lex fori is applied (eg Art 41 Swiss PIL Statute), or, as to foreigners, the ultimate personal law is applied with the lex fori subsidiarily applied thereafter (eg § 14 Austrian PIL Statute, Art 9 EGBGB). Foreign declarations of disappearance and of death are recognized according to the principles of recognition of decisions of voluntary jurisdiction (eg §§ 108, 109 German FamFG; Art 31 Swiss PIL Statute).
2. Law of marriage and divorce
The international law of marriage and divorce is concerned with engagement, marriage, effects of marriage (personal ones as well as effects regarding matrimonial property law) and divorce. In addition to this, non-marital partnerships and same-sex marriages are treated here.
Engagement is not considered in most of the PIL statutes, with one modern exception. According to Art 26 Italian PIL Statute, the engagement and the effects of any breach thereof is governed by the common national law of the engaged couple or, if there is no such law, by Italian law. In other jurisdictions it is well recognized that an engagement is governed by the personal law of the fiancé and fiancée (see Art 12 Turkish PIL Statute), and for the violation of the engagement either the personal law of the defendant is applied (see German Federal Supreme Court, BGH 21 November 1958, BGHZ 28, 375; 28 February 1996, BGHZ 132, 105) or the principle of the weakest law, ie that law of personal status of the two persons which has the weakest effects in respect of a breach of engagement.
The international law of marriage may be treated in two different ways. Either the personal law of either person governs (eg § 17(1) Austrian PIL Statute; Art 13(1) EGBGB; Art 27 s 1 Italian PIL Statute), or for local marriages only the law is fixed (regularly the lex fori for a competent registrar: eg Arts 43, 44 Swiss PIL Statute) and foreign marriages are recognized under a separate rule of recognition (eg Art 45 Swiss PIL Statute). The Hague Convention of 14 March 1978 on the Celebration and Recognition of the Validity of Marriages, valid in Austria, Luxembourg and the Netherlands, tries to find a third way. If at least one of the engaged persons has a close connection to the country where the marriage is celebrated, the lex fori governs, and, if such a close connection is missing, marriage is celebrated according to the substantive requirements of the internal law designated by the choice of law rules of the state of celebration.
Two additional problems are often considered alongside marriage: the form of marriage celebration and freedom of marriage.
(1) Normally the form of marriage celebration is governed either by the law governing the celebration or the law of the place of celebration. Many jurisdictions with mandatory civil marriage (eg France, Germany, Switzerland), however, require a civil marriage as a prerequisite for any local marriage (see Art 2 Hague Convention on Celebration of Marriage; Art 44(2) Swiss PIL Statute) or they allow the marriage of foreigners to be celebrated by an official person duly authorized by the foreign national state of the couple (eg Art 13(3) EGBGB). Other countries are more liberal. In Italy and Spain, for example, marriage may also be celebrated in religious form by a rabbi, imam or priest (Legge No 101 of 8 March 1989 and No 520 of 29 November 1995; Ley No 24, 25 and 26 of 12 November 1992). Such a foreign religious marriage, if all the requirements of private law are met, has the same effect and consequences as a civil marriage celebrated by a local civil registrar. In Germany a religious marriage celebrated before the civil marriage has been celebrated is null and void and has no legal significance whatsoever. In some jurisdictions, however, only religious marriages can be celebrated, and they will be recognized wherever they have been celebrated by a minister of the couple’s religious denomination.
(2) Freedom of marriage is at stake where either (1) a marriage has been dissolved domestically, or (2) a foreign divorce is not recognized domestically and the personal law of the divorced persons prohibits any further marriage because the divorce is not recognized, with the result that the still-existing marriage is an obstacle to the newly intended marriage. For this latter case several PIL statutes provide that the divorce is valid and its non-recognition is no obstacle for the newly intended marriage (eg § 17(2) Austrian PIL Statute; Art 13(2) No 3 EGBGB; Art 27 sentence 2 Italian PIL Statute; Art 43(3) Swiss PIL Statute). With these newly enacted provisions, states have reacted to decisions of high courts that divorced persons can remarry even if their governing personal law does not allow (German Federal Constitutional Court 4 May 1971, BVerfGE 31, 58; Swiss Federal Court: 3 June 1971, BGE 97 I 389; 5 February 1976, BGE 102 Ib 1).
Up to now there is still no European marriage which may be celebrated under a common European law and which therefore will be recognized in all Member States. Forced marriages celebrated abroad or at home, however, will be declared invalid because of the violation of the principle of freedom of marriage. If allowed by the governing foreign law, this law will be held as a violation of public policy.
c) Effects of marriage
There are personal effects of marriage and effects on matrimonial property.
(1) The designation of the law governing the personal effects of marriage has to satisfy the principle of equality of sexes. Therefore a connecting factor common to both spouses has to be chosen. Normally the common personal law (law of nationality or domicile) is designated and, if such a law is missing, the law of their common habitual residence governs (eg § 18(1) Austrian PIL Statute; Art 14(1) EGBGB) or, alternatively, the law with which the couple is most closely connected (Art 29(2) Italian PIL Statute; Art 48(2) Swiss PIL Statute). Personal effects of marriage do not play an important part of the law of marriage since the law of maintenance in respect of a couple, divorced or not divorced, has been exclusively covered by the Hague Maintenance Convention of 1973. The Hague Maintenance Convention of 1973 has been replaced in many Member States by the Hague Protocol of 23 November 2007 on the law applicable to maintenance obligations (see Art 15 Regulation 4/2009), because Art 8 of the 1973 Hague Convention with its rigid application of the law of divorce for post-marital maintenance was inadequate. According to Art 5 of the Protocol, the law of the habitual residence of the creditor does not apply if the debtor objects and there is a closer connection with another country (especially the country of their last common habitual residence). The Hague Convention of 1973 on the Enforcement of Maintenance Decisions is valid in 22 countries. EU Regulation 4/2008 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of foreign judgments and on cooperation in matters of maintenance entered into force on 18 June 2011 and incorporates the Hague Protocol of 2007 (Art 15) and takes precedence in the Member States of the EU, at least provisionally according to Council Decision of 30 November 2009 if the Hague Protocol has not at that stage entered into force officially.
(2) Matrimonial property relations between spouses are of more importance. Two questions are paramount: which is the applicable law and can it change after marriage?
(i) Many jurisdictions provide that matrimonial property is governed, for the entire time of the marriage, by the law of common personal status at the time of celebration of the marriage (§ 19 Austrian PIL Statute; Art 51 Belgian PIL Code; Art 15(1) EGBGB; Art 2078 Código civil of Peru; Art 53 Portuguese Código civil; Art 3089 Code civil de Québec; Art 15(1) Turkish PIL Statute; Art 4(1) of the Hague Convention of 1978 on Matrimonial Property which is in force in France, Luxembourg and the Netherlands since 1 September 1992). Other jurisdictions, however, opt for a change of the applicable law as soon as the couple changes habitual residence and, therefore, must decide whether such a change works retroactively (eg Art 30 Italian PIL Statute; Art 55 Swiss PIL Statute) or not (eg Art 20(2) Romanian PIL Statute; § 39(4) Hungarian PIL Regulation). The parties may exclude retroactivity (eg Art 55 § 1 sentence 2 Swiss PIL Statute).
(ii) The spouses may choose the law applicable to matrimonial property either before celebration of the marriage (eg Art 3 Hague Convention of 1978 on Matrimonial Property), after the marriage ceremony (Art 6 Hague Convention of 1978 on Matrimonial Property) or at any other time (eg Art 50 Belgian PIL Code; Art 15(2) EGBGB; Art 52 Swiss PIL Statute). This choice of law is, mostly, limited to the choice of certain laws; although in Austrian law it is unlimited (§ 19 PIL Statute). Normally only those laws may be chosen with which one of the spouses or immovable property at the time of choice has close contacts. This may be the national law of a spouse (eg Art 15(2) No 1 EGBGB; Art 30(1) s 2 Italian PIL Statute; Art 52(2) Swiss PIL Statute; Art 3(2) No 1 and Art 6(2) No 1 of the Hague Convention of 1978 on Matrimonial Property), the law of the habitual residence of a spouse (eg Art 15(2) No 2 EGBGB; Art 30(1) s 2 Italian PIL Statute; Art 3(2) No 2 and Art 6(2) No 2 Hague Convention of 1978 on Matrimonial Property) or the law of the country where immovable property is located (Art 15(2) No 3 EGBGB). In some jurisdictions only local matrimonial property regimes may be chosen (Art 53(3) Portuguese Código civil). Some of the older PIL Statutes excluded any choice altogether (eg § 39 Hungarian PIL Regulation).
(iii) The choice of the law applicable to matrimonial property is formally valid if the formalities of choice have been observed in respect of either the law chosen or the law of the place where the choice takes place (eg § 8 Austrian PIL Statute; Arts 15(3) and 14(4) EGBGB; Art 30(2) Italian PIL Statute; Art 56 Swiss PIL Statute).
(iv) The choice of law is restricted insofar as commerce has to be protected. The matrimonial property regime of a foreign country chosen by a spouse domiciled in another state is only valid as to third parties if either the choice has been registered with the public register of matrimonial property regimes (eg Art 16(1) EGBGB) or if the third person knew of the choice (eg Art 30(3) Italian PIL Statute; Art 57(2) Swiss PIL Statute). Because these requirements are seldom met, local matrimonial property regimes typically apply against third persons.
(v) There is not yet a common European matrimonial property regime which may be chosen by the spouses. There are, however, efforts being made to create such a regime at the European level. Since 2006 there is also a green paper (COM(2006) 400 final) with a provision on conflict of law rules concerning matrimonial property regimes, which contains rules on jurisdiction and the recognition of foreign judgments.
Up to now all Member States of the European Union have tried in vain to unify the international law of divorce. Recently 12 Member States (Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Romania, Slovenia and Spain) agreed on an enhanced cooperation in the field of international divorce law and enacted Council Regulation (EU) No 1259/ 2010 of 20 December 2010 implementing enhanced cooperation in the areas of the law applicable to divorce and legal separation (Rome III Regulation). In all other Member States (including the UK and Ireland), not being party to the enhanced cooperation, national conflicts law still applies except in those cases where the Hague Convention of 1970 deals with the recognition of foreign divorce decrees.
(1) Marriage is dissolved either according to the lex fori (in foro proprio) (eg English PIL; Art 61(1) Swiss PIL Statute) or, according to the Rome III Regulation, by the law chosen by the spouses (Art 5 Rome III Regulation) or by the law applicable in the absence of a choice by the parties (Art 8 Rome III Regulation). Chosen may be the law at the spouses’ habitual residence at the time of the agreement, the law at the former habitual residence if one of the spouses still resides there, the national law of either spouse or the law of the forum. In the absence of a choice, divorce and legal separation shall be subject to the law of the state where the spouses are habitually resident at the time the court is seized, failing that where the spouses were habitually resident one year before the court was seized and where one of them still resides there at this time, failing that the law of the state of which both spouses are nationals at the time the court was seized, and, finally, failing that the law of the court seized. In national continental law the common personal law of the spouses at the time of initiating divorce proceedings is applicable (eg Art 16 Greek Civil Code); if marriage cannot be dissolved according to this law (which may seldom happen today because divorce is provided for everywhere except still in Malta and the Philippines), the lex fori is applied if the petitioner has close contacts with the state or if the local forum has jurisdiction (eg Art 61(3) Swiss PIL Statute).
(2) Marriages in most states can only be dissolved by courts or by an official. This is emphasized by some PIL statutes (eg Art 17(2) EGBGB). A private divorce by delivery of a ghet or by repudiation in presence of witnesses (talaq) is invalid if it happens before the marriage is dissolved by a court decree and has no effect whatsoever in the forum state. If such private divorce takes place abroad, however, it may be recognized (see (4) below).
(3) The effects of divorce are of considerable importance. Different effects have to be distinguished.
(i) Post-marital maintenance is governed by the Hague Convention of 1973 and in the future by the Hague Protocol of 2007 (see (c)(1) above).
(ii) The matrimonial property regime is dissolved according to the law governing the property regime of the former spouses (see (c)(2) above).
(iii) Typical effects of divorce are the German Versorgungsausgleich (equalization of pension rights) and the division of substantially similar rights (Vorsorgeleistungen) under Swiss law. They are governed by the law governing divorce (expressly Art 17(3) EGBGB).
(iv) The parental responsibility of the divorced parents and support matters are also decided by the divorce tribunal, but these matters are governed by the law of children (see 3. below).
(4) For the proceedings in matters of divorce, Council Regulation 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIbis Regulation) applies. This regulation fixes in Arts 3–7 jurisdiction for matrimonial matters (divorce, separation and annulment of marriages) and contains in Arts 21–39 rules on the recognition and enforcement of judgments of Member States. According to Art 3, courts have jurisdiction if one of the spouses (petitioner or respondent) has his or her simple habitual residence or, under certain circumstances, qualified habitual residence in the forum state. If there is no jurisdiction under the Brussels IIbis Regulation, national law may fix jurisdiction subsidiarily.
A divorce decree of a Member State has to be recognized by every other Member State according to Arts 21–22 of Brussels IIbis Regulation unless there is a violation of the public policy of the recognizing state, a fair hearing was not granted (Art 22 lit b), or the decision contradicts another decision decided earlier which was decided in the recognizing state or has to be recognized as a foreign decree. The lack of jurisdiction of the foreign court is no impediment for recognition and jurisdiction and may not be scrutinized by way of applying the public policy clause (Art 24). A révision au fond is also excluded (Art 28). Divorce decrees of non-Member States are, absent bilateral treaties, subject to national rules on recognition and enforcement of judgments (eg § 107 German FamFG).
e) Non-marital partnerships
The law on non-marital partnerships is treated elsewhere (cohabitation).
3. Custody and guardianship
As far as adults can be placed under guardianship, the Hague Convention of 2000 on the International Protection of Adults applies in France, Germany, Switzerland and the United Kingdom. Apart from this there are also national conflict rules on the law applicable to guardianship of adults and similar measures for the protection of adults.
4. Parent and child
The international law of parent and child is also part of international family law and will be treated under the special keyword child law (international).
5. European family law
European family law is in a highly confused state. There are not only competing national and international instruments, but there are also overlapping international instruments. The time would seem particularly ripe for a unification of international family law. This may be accomplished in two different ways. Uniform substantive law could be established for certain international relations (eg marriage or matrimonial property law in the manner of France and Germany, who have decided in February 2010 to create a common French-German matrimonial property regime of surplus) or private international law could be unified on this matter comprehensively.
A start has already been made. Council Regulation 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility (Brussels IIbis Regulation) is in force, and the first decisions have been handed down. The EU Regulation 4/2008 of 18 December 2008 on jurisdiction, applicable law, recognition and enforcement of foreign judgments and cooperation in matters of maintenance addresses all aspects of mainte-* nance. The Rome III Regulation on the law applicable to divorce implements an enhanced cooperation in this area and is therefore limited to participating Member States.
The Commission on European Family Law is located in Utrecht and is working on a common law of family matters mainly consisting of substantive family law (European family law (PIL), Principles of European Family Law).
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