Art 81(3) TFEU says: “…measures concerning family law with cross-border implications shall be established by the Council, acting in accordance with a special legislative procedure. The Council shall act unanimously after consulting the European Parliament.”

The 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 aim of EU intervention is to offer citizens of Member States legal certainty in cross border family law situations by:

  • ensuring that decisions made in one country can be implemented in another
  • trying to establish which country has jurisdiction to hear a particular case.

The areas where the EU has intervened are:

  1. Matrimonial matters : divorce, separation and annulment
  2. Maintenance
  3. Parental responsibility

1) Regulation 2201/2003 (Brussels IIa or Brussels II bis) on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility. It sets out rules in relation to matrimonial matters in Art. 3 to 7, providing that a matrimonial action can be taken in the courts of the Member State where one or both parties are or were habitually resident or the Member State of their common nationality or their common domicile and providing 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 (with some exceptions).

2) Regulation 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations. It aims to enable a maintenance creditor to obtain easily and quickly an order which can readily be enforced throughout the EU. It does this by providing for common rules in relation to jurisdiction, applicable law, recognition, enforcement, cooperation and standardised documents.

3) Regulation 2201/2003 (Brussels IIa or Brussels II bis) Art. 8 to 15 apply to all decisions made by the courts of Member States in matters of parental responsibility. It covers the following aspects of parental responsibility:

  • Jurisdiction – what country should hear the case, whose laws should apply
  • 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 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.

Policy adviser:

Rita Giannini