Harmonization of Laws
- Elgar European Law series
Chapter 18: Familial Maintenance and Matrimonial Property
18. Familial maintenance and matrimonial property 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’...
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