EU and family law
The European Union (EU) has a limited role in family law matters. Each individual member state has its own rules about separation, divorce, maintenance of spouses and children, custody and guardianship and other family law matters.
The role of the EU is ensuring that decisions made in one country can be implemented in another. It also has a role in trying to establish which country has jurisdiction to hear a particular case. In effect, the EU does not have rules which govern, for example, who is entitled to have custody or access but it does have rules which try to make sure that custody and access orders made in one country can be put into effect in another.
The problem of conflict of laws
If all the parties to a family law dispute are from one country and are living in that country then generally the dispute is heard by the courts of that country, and a decision is made and implemented in accordance with the laws of that country. Problems arise when the parties are not living in the same country or are not nationals of the same country. It may not be clear which country’s courts should make the decisions, which country’s laws should be applied and how the decisions made in one country can be implemented in another.
Each country has its own rules about how these conflicts of laws should be dealt with. It is possible that several countries would have jurisdiction to hear the dispute and that each would apply different laws. The procedures for having judgments recognised and enforced in another country can be difficult and sometimes impossible. Generally, if you have a judgment from a court in one country, you have to go through another judicial process in another country in order to have it implemented there.
These problems arise between all countries and not only between EU member states. A number of international conventions have been agreed dealing with such conflicts of laws. These international conventions continue to apply between EU member states and non-EU member states. The EU regulations in family law matters apply in all the EU member states except Denmark which has opted out. So if there is a conflict of laws involving Denmark and another EU member state, the matter is governed by the international conventions if they are relevant.
Within the EU, there has been a simplified process for implementing certain judgments and orders from one EU member state in another. An even more streamlined process within the EU now applies to many orders relating to matrimonial matters and parental responsibility which were made in proceedings which started on or after 1 August 2022.
EU competence to deal with family law
The EU is only able to make laws in areas where EU treaties give it the specific power to do so. It cannot make laws in relation to divorce, maintenance or parental responsibility. This means the EU cannot make laws setting out the terms under which a divorce may be granted, or the responsibility of spouses to pay maintenance, or how decisions on custody and access to children are to be made.
However, the EU does have responsibility to promote judicial (legal) co-operation in civil matters which have cross border implications. It has made a number of regulations dealing with judicial co-operation. In general, these regulations are based on the principle of mutual recognition – that is, that decisions lawfully made in one EU country should be recognised and enforced in other EU countries and the procedures for doing so should be as simple as possible.
EU rules relating to matrimonial matters, parental responsibility and maintenance apply only in cross-border cases.
Matrimonial matters (divorce, separation and annulment) and parental responsibility
On 1 August 2022, Regulation 2019/1111 came into effect. It sets out the rules governing the jurisdiction, recognition and enforcement of matrimonial and parental responsibility orders in the EU in respect of legal proceedings that start after 1 August 2022 and agreements made after that date.
Regulation 2201/2003 also sets out the rules governing the jurisdiction, recognition and enforcement of matrimonial and parental responsibility orders in the EU. However, it applies to legal proceedings that began before 1 August 2022 and agreements made before that date.
The scope of the Regulations is confined to matrimonial matters (divorce, legal separation, annulment) while parental responsibility includes rights of custody and rights of access, guardianship, the placement of a child in a foster family or in institutional care.
Regulation 4/2009 sets out the current rules governing the recognition and enforcement of maintenance orders in EU member states. It aims to provide for the recovery of maintenance within the EU.
Divorce, separation and annulment
Regulation 2201/2003 sets out the rules on jurisdiction and the recognition and enforcement of judgments in matrimonial matters in cases that started between 1 March 2005 and 31 July 2022.
Regulation 2019/1111 sets out the rules on jurisdiction and the recognition and enforcement of judgments in matrimonial matters in cases that begin on or after 1 August 2022.
Matrimonial matters include divorce, annulment and legal separation but does not include, for example, the property consequences of marriage and the grounds for divorce.
Regulations 2019/1111 and 2201/2013 provide that you may take a matrimonial action in the courts of the EU member state where:
- one or both of you are or were habitually resident, or
- the member state of your common nationality, or
- your common domicile.
This means, of course, that it may be possible to take the action in a number of states. The Regulation provides that once proceedings have started in a particular member state, other states must refuse jurisdiction.
The Regulation does not deal with the question of which law applies. This is a matter for the member state that has jurisdiction. For example, most countries other than Ireland apply the law of the country of habitual residence of the parties while Ireland applies the law of the country of domicile.
Recognition of decisions
The Regulation provides that a decision on a matrimonial matter made in one member state must be recognised and enforced in the other states without any special procedures. You do not have to go to court to have it recognised. However, any interested party may ask the court in the other member state not to recognise the decision. The court may refuse to recognise the decision:
- If such recognition is clearly contrary to public policy
- If the decision contradicts another decision
- If there were certain procedural defects with the decision – in particular if one party was not properly served with the relevant papers and did not put in an appearance as a result
The court is not entitled to hear an appeal against the foreign decision.
The law applicable to international divorces
Regulation 2201/2003 or 2019/1111 do not determine what law applies when an application for divorce is being considered. For example, if an Irish person living in Spain wants to divorce a German spouse who is living in France, which national law applies?
Regulation 1259/2010 (known as "the Rome III Regulation") implementing enhanced cooperation in the area of the law applicable to divorce and legal separation currently applies in 17 member states. Ireland has not opted into this Regulation. The Regulation allows international couples in the member states where it applies to agree in advance which law will apply to their divorce or legal separation, as long as the agreed law is the law of the member state with which they have a closer connection. In case the couple cannot agree, the judge can use a common formula for deciding which country's law applies.
Regulation 2201/2003 (also known as "the Brussels II bis Regulation”) also sets out the rules on jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility for children in cases arising between 1 March 2005 and 31 July 2022.
Regulation 2019/1111 sets out the rules on jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility for children in cases arising on or after 1 August 2022.
They apply in a very wide variety of situations. For example:
- The parents do not need to be married to each other.
- The holders of parental responsibility need not be the biological parents of the child in question.
- It is not confined to court judgments as it applies to agreements between parents if such agreements are enforceable in the country where they were made.
What Regulation 2201/2003 and 2019/111 cover
- Jurisdiction – what country should hear the case
- Recognition and enforcement – how decisions made in one country are to be recognised and enforced in another
- Co-operation between central authorities
- Specific rules on international child abduction and access rights
Parental responsibility includes rights of custody and rights of access, guardianship, the placement of a child in a foster family or in institutional care. The Regulation does not apply to proceedings which involve:
- Establishing and challenging maternity and paternity
- Judgments in relation to adoption
- The child's first and last names
- Age of majority
- Trusts and inheritance
- Measures taken following criminal offences committed by children
The Regulation also applies to certain measures concerning the child’s property if they are related to the protection of the child.
The general rule is that the court which has jurisdiction in matters of parental responsibility is the court of the country where the child is habitually resident. Again, in general, once the matter is before the courts in one country, that country continues to have jurisdiction even if the child has recently lawfully changed country of residence. It is possible to have the case transferred to the new country of residence if certain conditions are met and if it would be in the best interests of the child.
The parents may agree to have the question of parental responsibility decided in the court which has jurisdiction on the matrimonial matter (for example, divorce, annulment or legal separation) or may agree to have the case heard by the court of a country with which the child has a close connection (for example, nationality).
If the child's habitual residence cannot be established, then the EU country in which the child is present has jurisdiction.
In certain circumstances, the court which has jurisdiction may refer the case to another court if that other court is better placed to hear the case and this is in the best interests of the child. This could arise, for example, if the child’s habitual residence has changed. There are time limits on this procedure. If a child’s habitual residence changes as a result of a wrongful removal or retention, jurisdiction may move only under very strict conditions.
The Regulation also includes rules on what is to happen if the proceedings are started in more than one member state.
In urgent cases, a court may take provisional protective measures even if another member state has jurisdiction on the substantive issue.
Recognition and enforcement
Judgments given in one member state must be recognised and enforced in another member state. The court in the other member state may refuse to recognise the order only on the grounds that:
- It would be manifestly contrary to that member state’s public policy
- The child was not given an opportunity to be heard (except in urgent cases)
- The judgment was given in the absence of a person who was not served with the documents instituting the proceedings in sufficient time and in such a way as to enable them to arrange for their defence
- A person claiming that the judgment infringes their parental responsibility was not given the opportunity to be heard
If you are applying to a court in another member state for recognition and enforcement, you are entitled to legal aid there if you were entitled in your own state. You may also get help from the Central Authority in the country where you are seeking recognition and enforcement.
Co-operation between national authorities
The Regulations create a system of co-operation between Central Authorities of the member states. These authorities are obliged to facilitate communications between the courts of the relevant countries and must facilitate agreements between parents through mediation or other means.
Child abduction is the unlawful removal or retention of a child. If you have custody of a child and your child is abducted to another member state, you may apply to that state for the return of the child. The courts of the member state to which the child has been abducted can only refuse return of the child in limited circumstances – for example, if there are not adequate safeguards to ensure that there is no serious risk that return would expose the child to harm.
In general, the court must order the immediate return of the child. You can find out more in our page on international child abduction.
The Hague Convention of 25 October 1980 on the civil aspects of international child abduction (“the 1980 Hague Convention”) and the Hague Convention (1996) on jurisdiction, applicable law, recognition, enforcement and cooperation in respect of parental responsibility and measures for the protection of children continue to apply in cases where the 2003 or 2019 Regulations do not.
The European Convention on Recognition and Enforcement of Decisions Concerning Custody of Children and on Restoration of Custody of Children (the Luxembourg Convention) applies to a number of European countries. It is now of limited relevance because the EU Regulation or the Hague Convention covers the relevant countries.
Both Conventions were signed in 1980. They were brought into effect in Ireland in 1991 by the Child Abduction and Enforcement of Court Orders Act 1991.
The recognition and enforcement of maintenance orders in EU member states is governed by Regulation 4/2009 (also known as ‘the Maintenance Regulation’). Its objective is to help a maintenance creditor (applicant) to establish easily, quickly and generally free of charge, an order which can be enforced throughout the European Union. It does this by providing for common rules in relation to jurisdiction, applicable law, recognition, enforcement, cooperation and standardised documents. It covers maintenance obligations which arise from:
- Family relationships
- Marriage or affinity
It means that a person who has an order for the payment of maintenance given in an Irish court is in a position to look for recovery of that amount in another EU country. The same service is available to those in other EU member states who are seeking recovery of maintenance against debtors (respondents) living in Ireland.
Under the Regulation, each member state has a Central Authority. The Central Authority in Ireland is the Department of Justice. The central authorities co-operate with each other in facilitating the operation of the Regulation. They also assist individuals in relation to applications available under the Regulation, particularly with regard to the transmission and receipt of applications, the initiation of related proceedings for the establishment or modification of maintenance, and for the enforcement of a maintenance decision.
Regulation 805/2004 of 21 April 2004 created a European Enforcement Order for uncontested orders – including maintenance orders – that came into effect in Ireland on 21 October 2005. Its provisions for maintenance orders were replaced by the Maintenance Regulation, except for European enforcement orders concerning maintenance obligations issued by member states that are not bound by the 2007 Hague Protocol on the law applicable to maintenance obligations. Only Denmark is not bound by the 2007 Hague Protocol.
The European Community signed a treaty (known as the new Lugano Convention) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters with Iceland, Norway and Switzerland. The Convention is substantially the same as Regulation 44/2001 and applies between an EU member state and Iceland, Norway and Switzerland.
UN and Hague Conventions
The UN Convention on the Recovery Abroad of Maintenance Payments (the New York Convention) was brought into effect for Ireland in November 1995 by the Maintenance Act 1994. This Convention is designed to facilitate the recovery of maintenance by a person living in one jurisdiction against a person living in another. The full list of jurisdictions covered by the New York Convention is set out here.
In 2007, the Hague Conference on Private International Law adopted the following two international instruments which are designed to facilitate the international recovery of maintenance:
- 2007 Hague Convention on the international recovery of child support and other forms of family maintenance. It revises two existing Hague Conventions relating to family support as well as the New York Convention. The Convention entered into force on 1 January 2013.
- 2007 Hague Protocol on the law applicable to maintenance obligations. The European Union has applied the Protocol since 2011 on a provisional basis to all its member states except for Denmark. The Protocol entered into force on 1 August 2013.
If you want to enforce a maintenance order in a country not covered by the Maintenance Regulation or the Lugano Convention, you should contact the Central Authority for Maintenance Recovery in the Department of Justice for help – see 'Where to apply' below. The Department is responsible for transmitting and receiving maintenance.
There is more information about maintenance in our page on maintenance orders and agreements.
Brexit, the UK and family law matters
On 23 June 2016, the United Kingdom (UK) voted to leave the European Union (EU). Following a transition period, on 31 January 2020 at 11pm the UK exited the EU. The UK is no longer a member of the EU.
Brexit affects a number of family law issues with a cross-border element. So, for example, there may be changes in how certain aspects of custody and maintenance applications are processed when one parent lives in the EU and one parent lives in the UK. The old basis for recognising UK divorces has also changed although they will still be recognised in Ireland under new rules.
Parental responsibility issues such as custody and access
Any cross-border custody or access orders that were in place at the end of the transition period remain in effect. So, orders affecting a child with parents/guardians in both Ireland and the UK are unaffected. If you had an ongoing case about arrangements for your children at the end of the transition period, your case will continue under the old rules.
However, if you applied for custody or access after the end of the transition period, different rules may apply for having the order made or accepted in Ireland or the UK. In general, cross-border parental responsibility issues involving Ireland and the UK will be governed by the 1996 Hague Protection of Children Convention. This is similar to the system which existed before Brexit and which already applies to parental responsibility matters with a link to Ireland and to some non-EU countries such as Australia and Russia.