Brussels II<i>bis</i>: successes and suggested improvements

Kruger, Thalia; Samyn, Liselot

doi:10.1080/17441048.2016.1151150

Cited by 14 publications

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“…Namely, one of the spouses might rush to a court which is more convenient to this spouse, before the other spouse has managed to do the same, so that the law applicable to the particular cross-border divorce would be the law which better suits the interests of this spouse. This is because according to national conflict-of-laws rules the law applicable to a cross-border divorce 34 See Kruger & Samyn (2016) usually is the law of the court (lex fori) and only subsidiarythe personal law of the spouses (lex causae). 39 One may find this conclusion of the Report to be only partly true, because typically the main reason for forum shopping is the desire for a particular law to be applied to the matrimonial property relations and maintenance.…”

Section: Brussels II Bismentioning

confidence: 99%

What Effect Does European Private International Law on Cross-border Divorce Have on National Family Laws and International Obligations of the Member States?

Stikāne¹

2019

AJL

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With the number of cross-border divorces in the EU soaring, the adoption of the 'Brussels II bis Regulation' and of the 'Rome III Regulation' seems like a logical step. Yet, discussion-provoking is the fact that the interaction between Brussels II bis and Rome III has resulted in Malta being forced to introduce the institution of divorce into its substantive family law. This shows that EU law may have some impact on the national family laws of the Member States in the future as well. For instance, Member States which have not yet legalised same-sex marriages may eventually be forced to do so. This paper argues why this acknowledgment is especially confirmed by Article 13 of Rome III. Besides, a Member State which participates in Rome III, but whose law does not provide for the institution of legal separation may be forced to deal with this institution. Moreover, although by using the public policy rule Member States may avoid the recognition of a Muslim divorce pronounced in a third country, problematic issues may be caused by the mufti divorce pronounced in Greece, which according to Brussels II bis could be entitled to an automatic recognition in the other Member States. Furthermore, this contribution suggests that, if according to Brussels II bis Greece automatically recognises a crossborder divorce of a Greek Muslim couple from Western Thrace with a habitual residence in, for instance, France, to which French law has been applied instead of the Sharia, Greece breaches its international obligations. Thus, this paper argues that the application of European private international law may create an awkward situation, in which a Member State may be forced to breach its international obligations in order to fulfil its obligations under EU law. Therefore, this contribution suggests an amendment to Article 22 of Brussels II bis.

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Section: Brussels II Bismentioning

confidence: 99%

What Effect Does European Private International Law on Cross-border Divorce Have on National Family Laws and International Obligations of the Member States?

Stikāne¹

2019

AJL

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“…33 Since 27 Lamont (2007). 28 Kruger & Samyn (2016) Brussels II bis should establish the jurisdiction of a cross-border divorce case if it turns out that no court has jurisdiction in the particular case, it would seem necessary to include forum necessitatis in Article 7 of Brussels II bis in the following wording: ‗If no Member State court has jurisdiction in the particular divorce case and it is not possible to obtain the divorce in a third country, then, if the Member State, in whose court the divorce application has been lodged, has a sufficiently close connection to the case, the court of this Member State has the right to declare itself the competent court.' A very similar suggestion has already been expressed by legal scholars, stressing that another reason why forum necessitatis should also be included in Brussels II bis are cross-border same-sex divorce cases.…”

Section: Brussels II Bismentioning

confidence: 99%

Untitled

2019

AJL

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Reviewers' Board Click Here v President's Message All ATINER"s publications including the e-journals are open access without any costs (submission, processing, publishing, open access paid by authors, open access paid by readers etc) and are independent of the presentations made at any of the many small events (conferences, symposiums, forums, colloquiums, courses, roundtable discussions) organized by ATINER throughout the year. The intellectual property rights of the submitted papers remain with the author. Before you submit, please make sure your paper meets some basic academic standards, which include proper English. Some articles will be selected from the numerous papers that have been presented at the various annual international academic conferences organized by the different divisions and units of the Athens Institute for Education and Research. The plethora of papers presented every year will enable the editorial board of each journal to select the best ones, and in so doing, to produce a quality academic journal. In addition to papers presented, ATINER encourages the independent submission of papers to be evaluated for publication. The current issue of the Athens Journal of Law (AJL) is the fourth issue of the fifth volume (2019). The reader will notice some changes compared with the previous issues, which I hope is an improvement.

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“…66 Lenaerts, 2013Lenaerts, , p. 1305 The overriding rule was described by some scholars as the procedure which "flies in the face of mutual trust". Kruger et al, 2016, 158. Besides, the 2016 Proposal and the 2018 General Approach do not envisages any restrictions on the type or the number of the legal remedies allowed in the proceeding on the substance of the rights of custody.…”

Section: The 2018 General Approach -General Rule and Exceptional Casesmentioning

confidence: 99%

THE EU COMMISSION'S PROPOSAL TO REVISE THE BRUSSELS IIa REGULATION: SHORTCOMINGS OF THE “OVERRIDING RULE”

Marjanović

2019

TEME

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As the procedure for the revision of the Brussels IIa Regulation is currently pending in the European Union, this paper focuses on the two issues which are correlated through the so-called “overriding rule” mechanism. The first problem concerns the proceeding on the return of the wrongfully removed or retained child involving two EU Member States – the State of refuge and the State where the child was habitually resident immediately before the abduction. The second one tackles the proceeding, currently regulated in the Brussels IIa, on the rights of custody (parental responsibility) when the return of the child was refused in the EU State on the grounds of Art. 13 of the Hague Child Abduction Convention. The proposals for the revision of the Brussels IIa Regulation heavily involve these issues. In that respect, the author indicates certain shortcomings and inconsistencies of the amendments proposed by the European Commission in the Proposal to Revise the Brussels IIa Regulation (2016) and the latest compromise solutions suggested by the Presidency to the Council in the General Approach to the Recast of Brussels IIa (2018). At the same time, the paper suggests two possible ways in which the balance between the principle of mutual trust between the EU Member States and the principle of the child's best interest could be better balanced. From the perspective of Private International Law of the Republic of Serbia, the revision of the Brussels IIa Regulation is important in view of Serbia’s candidate status for EU membership and the need to keep an eye on changes to the secondary EU legislation.

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Brussels IIbis: successes and suggested improvements

Cited by 14 publications

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What Effect Does European Private International Law on Cross-border Divorce Have on National Family Laws and International Obligations of the Member States?

What Effect Does European Private International Law on Cross-border Divorce Have on National Family Laws and International Obligations of the Member States?

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THE EU COMMISSION'S PROPOSAL TO REVISE THE BRUSSELS IIa REGULATION: SHORTCOMINGS OF THE “OVERRIDING RULE”

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