The future of European private international law instruments on property regimes in the case of spouses and registered partnerships

Abstract

The reality within the European Union is that private relationships readily extend across borders. This is the raison d’etre of the phenomenon known as the Europeanisation of private international law, which has gained momentum in the European Union, culminating into the current legislative framework of European private international law. This framework resembles a mosaic, a composition of several individual fragmented European instruments covering several fields of private law in an international dimension. However this mosaic is incomplete due to the presence of systematic gaps in relation to several areas of law. One such area is family law. This has triggered the Commission's initiative to draft two proposals for a Council Regulation on jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes and property consequences of registered partnerships, aimed at dismantling the uncertainties surrounding property rights. From a focused examination on the property aspects in a cross-border family case, the focus shifts to a wider perspective, that of examining the issues of characterisation and coordination between the issues of maintenance and property relations surrounding a cross-border divorce dispute. Considering the pace at which legislation on international family law is being drafted and the few gaps that are required to be filled in order to complete the mosaic of European private international law in family matters, what initiatives should the European legislator be aiming at? The ugly truth is that inconsistencies amongst the separate European Union Regulations will inevitably emerge. The fragmented approach adopted in relation to European private international law impinges on guaranteeing a tangible reality to European citizens. Can this fragmentation be addressed through codification or is it deemed to be too far-fetched? Once a unified system of private international law is attained, and the harmonisation of family law is not yet foreseeable, would striving towards a European Code of Private International Law and furthering European family law Principles be the following step to consider ?