EU Family Law

The Limited Competence of the European Union in Family Law

The European Union possesses no general competence to legislate in substantive family law. The regulation of marriage, divorce, parental responsibility, and the property relations of spouses remains within the exclusive competence of the member states. The Union’s role is limited to measures concerning judicial cooperation in civil matters having cross-border implications, authorised by Article 81 of the Treaty on the Functioning of the European Union (TFEU). Article 81(1) provides that the Union shall develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. Article 81(3) specifically provides that measures concerning family law with cross-border implications shall be adopted by the Council acting unanimously after consultation with the European Parliament.

The requirement of unanimity for family law measures has proven challenging. The Union has addressed this through the mechanism of enhanced cooperation under Articles 326-334 TFEU, which permits a group of at least nine member states to adopt measures among themselves when the Council has established that the objectives cannot be attained within a reasonable period by the Union as a whole. The Regulations on matrimonial property regimes and registered partnership property regimes were adopted through enhanced cooperation, as was the Regulation on the property consequences of registered partnerships.

The Union’s family law measures are acts of private international law — or conflict of laws — rather than substantive family law. They determine which court has jurisdiction, which law applies, and how judgments are to be recognised and enforced across member state borders. They do not harmonise the substantive rules of marriage, divorce, or parental responsibility, which remain diverse across the member states.

Brussels IIbis and Brussels IIter

The primary instrument on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility is Council Regulation (EC) No 2201/2003 of 27 November 2003, commonly known as Brussels IIbis. The Regulation entered into force on 1 March 2005 and applies in all member states except Denmark. In matrimonial matters, the Regulation establishes uniform jurisdiction rules based on habitual residence, nationality, or domicile, and provides for the automatic recognition of decisions on divorce, separation, and annulment across member states without any special procedure.

In matters of parental responsibility, Brussels IIbis established rules on jurisdiction based primarily on the child’s habitual residence, with limited scope for prorogation of jurisdiction and for the transfer of proceedings to a court better placed to hear the case. The Regulation provided for the direct enforcement of decisions on rights of access and decisions requiring the return of a child in cases of wrongful removal, dispensing with the requirement of exequatur — the procedure formerly required for the recognition and enforcement of foreign judgments.

Brussels IIbis has been replaced, from 1 August 2022, by Regulation (EU) 2019/1111 of 25 June 2019, known as Brussels IIter. The new Regulation further strengthens the principle of mutual recognition and introduces several significant reforms. It abolishes the exequatur for all decisions on parental responsibility, not merely access and return decisions, enabling the direct enforcement of custody and access orders across member states. It strengthens the child’s right to be heard, requiring that a child who is capable of forming his or her own views be given the genuine and effective opportunity to be heard in proceedings affecting the child. It introduces new rules on the placement of children in another member state and on the taking of provisional and protective measures. The Regulation also establishes a mechanism for the transfer of proceedings between central authorities, including the obligation to provide mediation in cross-border family disputes.

Maintenance Regulation

Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law, recognition, and enforcement of decisions in matters relating to maintenance obligations applies from 18 June 2011 to all member states, with Denmark participating by virtue of a parallel agreement. The Maintenance Regulation establishes uniform jurisdiction rules, with the primary basis being the habitual residence of the creditor, though jurisdiction may also be founded on the courts having jurisdiction over the status of a person (for maintenance ancillary to divorce or parentage proceedings).

The Regulation makes applicable law in maintenance matters the law of the habitual residence of the creditor, by incorporating the 2007 Hague Protocol on the Law Applicable to Maintenance Obligations. The Regulation also establishes a system for the recognition and enforcement of maintenance decisions: decisions given in a member state bound by the 2007 Hague Protocol are entitled to automatic enforcement without exequatur, through the creation of a European Enforcement Order for maintenance. Decisions from member states not bound by the Protocol (the United Kingdom, before its withdrawal) remained subject to exequatur. The European Enforcement Order for maintenance, contained in Annex VII of the Regulation, certifies a maintenance decision for direct enforcement in the member state of enforcement without intermediate proceedings.

Succession Regulation

Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition, and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession applies from 17 August 2015 to all member states except Denmark, Ireland, and the United Kingdom. The Succession Regulation addresses the cross-border inheritance of assets, determining that jurisdiction lies with the courts of the member state where the deceased had his or her habitual residence at the time of death, unless the deceased chose the law of his or her nationality as the law governing the succession.

The Regulation introduces the concept of the habitual residence of the deceased as the principal connecting factor for both jurisdiction and applicable law, replacing the traditional nationality-based approaches of many civil law systems. The deceased may choose the law of his or her nationality to govern the entire succession, but may not choose the law of habitual residence. The Regulation also creates the European Certificate of Succession, a standard form that may be used by heirs, legatees, and executors to demonstrate their status and powers across member states, and that is entitled to recognition without any special procedure.

Matrimonial Property and Registered Partnership Regulations

Council Regulation (EU) 2016/1103 of 24 June 2016 implementing enhanced cooperation on the jurisdiction, applicable law, and recognition and enforcement of decisions in matters of matrimonial property regimes, and Council Regulation (EU) 2016/1104 of 24 June 2016 on the property consequences of registered partnerships, apply from 29 January 2019 to the participating member states. The Regulations were adopted through enhanced cooperation because the Council could not reach unanimity for Regulations applicable to all member states. Eighteen member states initially participated, a number that has since increased.

The Matrimonial Property Regulation establishes uniform conflict-of-laws rules for the property relations of spouses. Spouses may choose the law applicable to their matrimonial property regime from among the law of the habitual residence of either spouse at the time of the choice, the law of the nationality of either spouse, or the law of the state where either spouse was born. In the absence of choice, the applicable law is determined by a cascade: first, the law of the spouses’ first common habitual residence after marriage; failing that, the law of the common nationality at the time of marriage; and failing that, the law of the state with which the spouses jointly have the closest connection.

The Registered Partnership Regulation applies the same framework to the property consequences of registered partnerships, with the important difference that the applicable law is determined by the law of the state under whose law the partnership was registered. The Regulation does not create or require the recognition of registered partnerships; it regulates only the property consequences of partnerships that exist under national law.

Free Movement and Family Reunification

The Court of Justice of the European Union (CJEU) has developed a substantial jurisprudence on the rights of EU citizens and their family members under the free movement of persons, particularly under the Citizens’ Rights Directive 2004/38/EC. The Directive grants EU citizens the right to move and reside freely within the territory of the member states, and provides that their family members, including the spouse and the direct descendants and dependent direct relatives in the ascending line, may join them irrespective of nationality.

The CJEU has given an expansive interpretation to the concept of the spouse for the purposes of the Directive. In Coman and Others v Romania (Case C-673/16, 2018), the Court held that the term spouse under the Directive is gender-neutral and includes the same-sex spouse of an EU citizen who has exercised free movement rights, even if the host member state does not recognise same-sex marriage. The Court held that the host state may not refuse residence to the same-sex spouse of an EU citizen because such a refusal would impede the EU citizen’s exercise of free movement, even though the host state is not required to provide for same-sex marriage in its domestic law.

The CJEU has also addressed the rights of parents, children, and other family members, including the right of a parent who has primary care of a child who is an EU citizen to reside in the host member state (Zambrano v Office National de l’Emploi, Case C-34/09, 2011) and the right of a child to maintain contact with a parent residing in another member state. The jurisprudence reflects the interconnectedness of free movement law and family law, and the increasing importance of EU law in shaping the rights of families across borders.

The European Convention on Human Rights

The European Court of Human Rights (ECtHR) exercises a parallel and intersecting jurisdiction over family life through Article 8 of the European Convention on Human Rights, which guarantees the right to respect for private and family life. All EU member states are parties to the Convention, and the EU itself acceded following the Lisbon Treaty, though the accession process remains incomplete. The CJEU draws inspiration from the Convention and from the ECtHR’s jurisprudence.

The ECtHR has developed a rich body of case law on family life, including the recognition of same-sex relationships (Schalk and Kopf v Austria, 2010), the right of transgender persons to marry (Goodwin v United Kingdom, 2002), the regulation of parental responsibility and access, the protection of children in care proceedings, and the rights of migrants and their families under immigration law. Article 8 requires states to strike a fair balance between the interests of the individual and the community, and imposes positive obligations on states to respect family life through the legal framework for family relationships. The Convention thus serves as a floor of protection that both supplements and constrains the family laws of EU member states and the EU’s own measures.