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Challenges in Cross-Border Family Law: Competences and Solutions

Delve into the complexities of cross-border family law competences, exploring issues like recognition of marriages and registered partnerships, children's rights, and the concept of 'facilitation'. Discover potential solutions such as litigation, lobbying, and legislative changes to address gaps in implementation. Explore how EU principles like Equality, Marriage, and Family Life in the Charter of Fundamental Rights may shape distinctive approaches to these legal issues.

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Challenges in Cross-Border Family Law: Competences and Solutions

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  1. An academic perspective Helen Toner

  2. Competences? • Migration/entry • Cross-border recognition • Internal family law

  3. Dir 2004/38 • ‘Spouse’ – but what does that mean? • RP, if formed under law of a MS State and if legislation of host state (not state of origin) treats as equivalent to marriage • Unmarried … State must ‘facilitate’ entry (McCollum) • TCN sponsors? MS discretion (‘may’ admit) even for registered partnerships

  4. The current issues • Recognition of marriages … • Registered partnerships travelling • And uncertainty about ‘facilitation’ … • … and what about the children?! • Reluctance to ‘push’ sceptical member states too far until ready to adopt measures in national law

  5. Examples? • Migrant Dutch marriage (Ger-US) that couldn’t move to Austria  and didn’t get to ECJ – also German case • Case on ‘other family members’ referred from the UK … may clarify and possibly strengthen? concept of ‘facilitation’ • ILGA website, FRA report, Commission report on implementation – clearly some gaps still do remain

  6. Solutions? • Litigation ?? • Lobbying and legislative change ?? • What ideas and concepts are changing the legal landscape and underlying concepts and ideas??

  7. Charter of Fundamental Rights • Equality, marriage, family life and citizenship … • All may give a harder legal edge to arguments, litigation and lobbying, and possibly to development of distinctive EU approaches to these issues • But not create new competences

  8. Equality • Karner v Austria (ECHR) • Maruko • Romer

  9. Family life? • Schalk & Kopf (ECHR) • ‘Respect’ for Family life in ECHR caselaw … do we need a distinctive EU approach to this concept to facilitate choice of family residence?

  10. Citizenship discourse? • Can free movement (eg Carpenter) and now EU Citizenship principles (Baumbast, Chen …) assist? • Now Ruiz Zambrano which may very profoundly influence scope and reach of EU Citizenship rights

  11. Citizenship and civil status • There is another ‘citizenship’ angle – recognition of civil status • Especially cases on names – although recognition of parentage, marriage and partnerships also raise issues • Commission has started discussion although recognises some issues will be easier than others

  12. Mutual recognition, family law • AFSJ ... Competence to act in cross-border situations • Family law ‘proper’ still competence of MS – but needs to be exercised compatibly with EU law

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