Regulation 219/1111 of the Council of the EU, known as “Brussels IIb”, on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, as well as on international child abduction, will apply from 1 August 2022, to judicial proceedings, registered authentic instruments and agreements concluded from that date in the Member States of the European Union, with the exception of Denmark.
As regards matrimonial questions, little progress has been made as it has proved impossible to reach consensus on an agreed definition of ‘marriage’.
The so-called “Rome III” Regulation does not allow, for example, recognition of a “private” divorce decision rendered in a third State, such as a divorce pronounced before a religious court in Syria or a divorce by non-judicial mutual consent (known as “divorce without a judge”), which has existed in France since 2017 . It only permits divorces that are pronounced by a state court or by a public authority (or under the public authority’s control) to be recognized.
Article 65 of the Brussels IIb states that “authentic instruments and agreements relating to legal separation and divorce which have binding legal effect in the Member State of origin shall be recognised in the other Member States without the need for any procedure … ‘. ‘Agreement’ is defined as ‘an instrument which is not an authentic instrument, which has been concluded by the parties in matters falling within the scope of this Regulation and which has been registered by a public authority notified to the Commission for that purpose by a Member State in accordance with Article 103′.
If notaries public are notified to the Commission as relevant public authorities for that purpose, a notary who receives divorce agreements may be the competent authority to register them and his agreements may be recognised and enforced in the other Member States without further formality, subject however to respect for the public policy of the Member State where recognition is sought. (At the time of writing the lists of public authorities, available from the European e-Justice portal, have not yet been up-dated to take account of Brussels IIb).
With regard to parental responsibility, the new Regulation gives a simple definition of a child, being “any person under 18 years of age”. It suggests giving a real and effective opportunity for the child, who is capable of forming his or her own views, to give their opinion, failing which there is a risk that any decision that concerns him or her will not be recognized.
The Regulation allows parents to choose the court to rule on parental responsibility, provided that it is closely connected to the child and serves his or her best interests. It will no longer be necessary to resort to a formal procedure for the enforcement of the decision: a certificate from the Member State which issued the decision will permit its general availability for immediate enforcement.
An entire chapter is devoted to the issue of the abduction of children. The ‘immediate return’ mechanism must be implemented quickly, since the judge will have to give a decision within 6 weeks. The judge will not be able to refuse to return the child if the requesting parent (non-abductor) demonstrates that adequate measures have been taken to protect the child upon his or her return. Finally, the judge of the country where the child was originally resident will have the final say at the end of the procedure on the merits, as distinguished from the judge in the State of refuge.
This is a summary of some of the improvements offered by the new text, which is not perfect or complete and which does not settle certain questions, such as the free movement within the European Union of some of the consequences of divorce, such as maintenance obligations.
Interpretation of the Regulation is sometimes difficult and no doubt lawyers, academics, judges and notaries will work to clarify its meaning in practice and without ignoring the provisions of other Regulations which will remain in force, unless they have been recast in this new “Brussels IIb” Regulation.