EU Private International Law

EU Private International Law

Harmonization of Laws

Elgar European Law series

Peter Stone

This book focuses on harmonization of conflict laws at the European Community level, which has been driven by the introduction of a series of conventions and regulations. It offers critical assessment of these advances across four main areas of concern: civil jurisdiction and judgments; the law applicable to civil obligations; family law; and insolvency.

Chapter 18: Familial Maintenance and Matrimonial Property

Peter Stone

Subjects: law - academic, european law, private international law


INTRODUCTION The Brussels IIA Regulation (like its predecessor, the Brussels II Regulation) does not apply to familial maintenance or to matrimonial property, even when these matters are dealt with ancillarily in proceedings for divorce, separation or annulment.1 Instead maintenance falls within the scope of the Brussels I Regulation, even when dealt with ancillarily in matrimonial proceedings.2 In contrast matrimonial property is not yet regulated by any Community measure, though it is among the matters listed for action in the first stage of the draft Programme of Measures for Implementation of the Principle of Mutual Recognition of Decisions in Civil and Commercial Matters.3 It is difficult to see why the tiresome necessity of distinguishing between maintenance and matrimonial property could not be eliminated by a simple amendment to the Brussels I Regulation, deleting matrimonial property from the matters excluded from its scope by Article 1(2)(a), and extending Article 5(2), on direct jurisdiction over maintenance, to cover matrimonial property as well. In any event the European Court has construed maintenance widely and matrimonial property narrowly. Thus in De Cavel v De Cavel (No. 2)4 it ruled that maintenance includes periodical payments between former spouses after divorce, where such payments are designed to compensate for the disparity in their living standards arising from the breakdown of the marriage, and are fixed on the basis of their respective needs and resources. Further, in Van den Boogaard v Laumen,5 faced with an English ‘clean-break’ divorce settlement, it ruled that maintenance...

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