International Family Law in Europe – the Maintenance Project, the Hague Conference and the EC: A Triumph of Reverse Subsidiarity

Abstract

First paragraph: Some 13 years ago Gordon Moir and I argued for the importance of "reverse subsidiarity" in the European Union's (EU) engagement in family law aspects of private international law. One point we made was that it is intrinsically a good thing to try to reach agreement on family law globally rather than regionally - globalisation has led to more families with an international dimension not just within the EU but throughout the world and the large movements of people have often followed different patterns than those prompted by European integration, e.g. Asians from the British Commonwealth moving to the United Kingdom (UK), Turkish people seeking employment in Germany, North Africans migrating to France, etc. A second point was that with the increased diversity in approaches to family law of an EU of 15 States it would not be possible to reach deeper agreements at the EU level by unanimity than it would globally in The Hague. Therefore a global solution is more apposite to private international law issues than a regional one because in the absence of greater depth regionally, greater breadth globally is the desired objective. This argument has even more force today in a Union of 27 States. The almost certain failure of the Rome III proposal on harmonisation of choice of law in divorce is testament to the difficulty of attaining unanimity in the EU in this sensitive area. Malta does not want to apply foreign law to divorce because it does not recognise the existence of divorce whilst Sweden does not want to apply foreign law to divorce because it wants to maintain a very simple no-fault system of divorce on demand. The need for unanimity in the EC Treaty in relation to family law aspects of private international law will be maintained under the Treaty on the Functioning of the European Union if the Treaty of Lisbon is ratified by all the Member States. Choice of law in divorce is probably an area where the only way forward is a resort to variable geometry in the Union and to allow those States who want to have harmonised applicable law rules that apply foreign law to use enhanced cooperation to achieve it. This is being actively considered in the EU at the moment. Clearly a global agreement on choice of law in divorce is not possible and nobody would seriously contemplate putting it on the Hague Conference agenda. However, this is a digression from the main theme of this paper which is an explanation of why reverse subsidiarity has worked in the context of maintenance. The main theme will be addressed directly in part 2 of this article. Part 3 continues the development of the theme by showing where the EC Maintenance Regulation has benefited directly from the work done in The Hague, e.g. restricting the jurisdictions available to debtors to modify maintenance decisions. Part 3 also acts as an introduction to some of the key provisions in the Hague Maintenance Convention and in the EC Maintenance Regulation without providing a systematic analysis of either of these instruments. Such a systematic analysis is beyond the scope of this article. Before turning to the main theme of the article, part 1 (below II.) gives a brief background to the new Hague Maintenance Convention, the Hague Protocol and the EC Maintenance Regulation to help put the discussion into context.