France: Family Law


US Department of State 2005 Report France has largely been effective in returning children abducted to France back to the United States, and until this past year, we did not discern a pattern of system-wide enforcement difficulty. In two cases this year, however, left-behind parents were severely delayed in enforcing return orders, which led to increased bilateral consultations and diplomatic intervention to seek their resolution. These cases occurred in entirely different parts of the country and involved different officials. One case became highly visible in the media, and six months passed after a Hague return order was issued before the case was finally resolved. The other case, however, remains unresolved as of this writing. In the first case, the taking parent was able to avoid enforcement by refusing to comply with enforcement officials and by concealing the whereabouts of the child. In the second, the prosecutor has taken no action since a return order was issued in March 2004. The problems experienced in 2004 with respect to enforcement in France serve as a cautionary note that even in countries where Hague cases are handled well and frequently result in returned children, enforcement issues can and do occur.



The French courts now generally refuse to recognize Islamic divorce decrees. So reports the conflictoflaws.net blog. The typical cases before the French courts concern Islamic divorces obtained in Algeria or Morocco by husbands of Algerian or Moroccan origin who have emigrated to France. When the wife decides to sue for divorce in France, the husband travels to Algeria or Morocco for a quick Islamic divorce (talaq) under which the wife receives extremely low financial compensation. The husband then asks the French court to stop all proceedings in France because the parties are already divorced.

Until 2004, the Cour de Cassation (the French Supreme Court for private matters) used various specific grounds to deny recognition to most such divorces. The typical grounds were that the wife had not been called to the foreign proceedings or that the husband had committed a fraude à la loi by initiating proceedings overseas for the sole purpose of avoiding French proceedings.

However, in 2004, the Cour de Cassation ruled that Islamic divorces are in fundamental contravention of French public policy since they infringe the principle of equality between spouses that is mandated by the European Convention of Human Rights (Article 5, Protocol VII). In 2007 the Cour de Cassation issued similar rulings in five more cases, thereby making the rule firm.


European Family Law


The EU and Family Law


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 role of the EU is mainly concerned with 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.

So far, it has not made any rules about which country’s laws should apply in particular cases. 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 ensure that custody and access orders made in one country can be put into effect in another. EU rules in relation to enforcement of matrimonial orders (divorce, separation, annulment) and some parental responsibility orders (mainly custody and access) came into effect on 1 March 2001. A new regulation on matrimonial matters and parental responsibility came into effect on 1 March 2005. This did not involve any significant change in the rules on matrimonial matters but it did involve changes in the rules governing parental responsibility. EU rules in relation to the enforcement of maintenance orders came into effect on 1 March 2002. These rules are very complex and here we give a summary of the current EU rules in the family law area.


The recognition and enforcement of maintenance orders in EU member states is governed by Regulation 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. This regulation is known as “Brussels I” and has been in effect since 1 March 2002. It replaced the 1968 Brussels Convention in all the EU states except Denmark. That Convention continues to apply to other countries.

The Regulation applies in civil and commercial matters and has detailed rules in a number of areas including consumer contracts and individual employment contracts. It does not cover a range of matters including taxation, the status or legal capacity of people, matrimonial matters, wills and succession and social security.

Here we are only concerned with its role in relation to family law. It does apply to maintenance orders in family law cases. It deals with jurisdiction (i.e. which court can hear the case) and enforcement of maintenance orders. It provides that, if you are a maintenance debtor (you are owed money under a maintenance order), you may sue the maintenance creditor (the person who owes you money) in the member state where you are domiciled or habitually resident if the maintenance creditor is domiciled in another member state.

Maintenance matters may also be decided by the court which is dealing with divorce or separation proceedings, provided its jurisdiction to do that is not based only on the nationality of one of the parties.

A judgment on maintenance given in one member state is enforceable in the other member states – a party may ask for its enforcement and get a declaration that it is enforceable. The court must declare it enforceable unless

-this would be contrary to public policy
-the judgment is irreconcilable with an earlier judgment
-the document which started the proceedings was not served in time.

In effect, the foreign judgment is enforceable virtually automatically but it does require a court procedure.

Enforcement Order for Uncontested Claims

Regulation 805/2004 of 21 April 2004 creating a European Enforcement Order for uncontested claims will come into effect on 21 October 2005. This will apply to judgments issued after it comes into effect. It provides that uncontested orders – including maintenance orders – may be directly enforced in another member state without having to go through another judicial process in that state. A judgment that has been certified as a European Enforcement Order by the court of one member state must be enforced as if it were given in the member state in which enforcement is sought.

Divorce, Separation and Annulment

Regulation 1347/2000 of 29 May 2000 (called the “Brussels II Regulation”) which came into effect on 1 March 2001 sets out the rules on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses. This regulation has now been replaced by Regulation 2201/2003 (“the new Brussels II Regulation” or the

“Brussels II bis”) for cases arising on or after 1 March 2005 but its rules in relation to matrimonial matters are virtually unchanged. “Matrimonial matters” includes divorce, annulment and legal separation but does not include, for example, the property consequences of marriage and the grounds for divorce.


The Regulation does not set out one general rule about jurisdiction in matrimonial matters. It provides that you may take a matrimonial action in the courts of the 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 and the UK apply the law of the country of habitual residence of the parties while Ireland and the UK apply 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 recognized and enforced in the other states without any special procedures. You do not have to go to court to have it recognized. However, any interested party may ask the court in the other member state not to recognise the decision. The court may refuse to recognize the decision if such recognition is clearly contrary to public policy or if the decision contradicts another decision or if there were certain procedural defects – 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 decision.

The Law Applicable to International Divorces

The Commission has issued a Green Paper and launched a public consultation on the applicable law and jurisdiction in divorce matters. As explained above, current EU law does not determine what law applies when an application for divorce is being considered. For example, if an Irish person living in the UK wants to divorce a German spouse who is living in France, which national law applies? At present, the different member states have different rules for answering this. The Green Paper addresses possible solutions to the problem.

Parental Responsibility

Regulation 2201/2003 sets out the rules on jurisdiction and the recognition and enforcement of judgments in matters of parental responsibility for cases arising on or after 1 March 2005. This regulation extends Regulation 1347/2000 which applied from 1 March 2001. The earlier regulation only applies to judgments on parental responsibility that were issued in the course of matrimonial proceedings and it only applies to judgments in relation to the children of both spouses. The new regulation has detailed provisions dealing with cases which were started before 1 March 2005 but not decided until after that date and cases which were decided before that date but for which there are now different enforcement mechanisms available. For example, if, before 1 March 2005, you had an order, under the old regulation, giving you access to your children, you may now use the new enforcement procedures to implement that order. The following is a description of the new regulation.

What the Regulation Covers

The regulation 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 recognized 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. The regulation does not apply to proceedings which involve:

-Establishing and challenging paternity
-Judgments in relation to adoption
-The child’s first and last names
-Age of majority
-Trusts and inheritance
-Measures taken following criminal infringements 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. Measures that relate to the child’s property, but which do not concern the protection of the child, are covered by the Brussels I Regulation. It is for the judge to assess in the individual case whether a measure relating to the child’s property concerns the protection of the child or not.


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. If the child has lawfully changed country of residence and the previous country had already given a judgment on parental responsibility, then that court continues to have jurisdiction. 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 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 member state 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. The regulation also includes rules on what is to happen if the proceedings are started in more than one member state.

Co-operation between National Authorities

The Regulation creates 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.

Recognition and Enforcement

Judgments given in one member state must be recognized and enforced in another member state. The court in the other member state may refuse to recognize the order on the same basis as applies to matrimonial orders and also on the basis that the child was not given an opportunity to be heard or a person claiming that the judgment infringes his or her parental responsibility was not given the opportunity to be heard.

Child Abduction

Child abduction is the unlawful removal or retention of a child. If you have custody 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.

Access Rights

Access rights are directly enforceable in other member states. This means that it is not necessary to go to court to declare that they are enforceable if the court which issued the orders also issues the required certificate. (This certificate guarantees that procedural safeguards have been respected – for example, that all parties had an opportunity to be heard, the child had the opportunity to be heard if that was appropriate.) It does not matter who holds the access rights – it is usually a parent but can be a grandparent or other family member depending on the national rules involved. The certificate means that the judgment is treated in the new member state as if it were a judgment of that state.



England: Family Law

This office handles very many international family law cases that have a U.K. connection, working with counsel in the U.K. as appropriate, including:

Prenuptial agreements with a U.K. connection

Divorce cases with a U.K. connection

International child abduction to and from the U.K.

Child relocation and child custody cases with a U.K. connection.

Mr. Morley is a dual British-U.S. national.

He was born and educated in England (Manchester, Sheffield and London) and taught law at the University of Sheffield.


by Jeremy D. Morley

England has become a forum of choice for spouses with less assets to sue their internationally-connected wealthier spouses for divorce.

Until 2000 the English courts divided a married couple’s assets in a way that would ensure that the “reasonable needs” of the financially weaker party — usually the wife — were met. It meant that the spouse who had more assets in his name than his wife was able to keep most of them.

Everything changed in the famous case of White v. White, England’s top court, the House of Lords as it was then named, ruled that the lower appeal court, the Court of Appeal, had got it all wrong for 25 years. The House of Lords ruled that it was wrong to limit a wife leaving a long marriage to no more than was needed for her “reasonable needs.” From now on, everything was to be determined by “fairness.” The problem is that “fairness” is an elusive term.

Then a famous soccer star, Ray Parlour, was ordered to pay his wife one-third of his future earnings for at least four years, plus a large lump sum, two valuable mortgage-free houses and a large annual sum for child support.

And in Miller v. Miller, a case that caused an outcry in England, an (American) woman who earned a good salary before marrying an English multi-millionaire, received an enormous payoff for less than three years of a childless marriage in her divorce.

The surprising situation in England results from several peculiarities of the English system.

The first is that in England the “pot” of assets that is to be divided includes everything that the spouses own, including everything that they each had before they got married. This is in sharp contrast with most legal systems which say that whatever you have on the date of the marriage stays yours unless you take specific steps to give it to the marital partnership.

The second difference is that the English courts place one party’s inherited assets into the marital pot.

Third, the English courts have determined that “fairness” is the governing factor to determine the appropriate division of assets but since that concept has been created by the judiciary, rather than by legislation, it is extremely difficult to predict how any particular case will be decided.

Fourth, England is one of the few places where lifetime spousal maintenance (alimony) payments are routinely ordered by the courts in favor of the spouse with fewer assets or less earning capacity.

Fifth, England uses the concept of the “clean break” as an ideal way to resolve financial matters. It is intended to mean that one ex should not have to continuously chase the other ex for money. It’s a very nice theory, but it can be punitive to the spouse with assets.

Finally, to make matters even more unpredictable, prenuptial agreements have not been enforceable in England but will now, since Radmacher v. Granatino, be given substantial, even decisive, weight provided they are “fair.”  No one quite knows what “fairness” means in practice, so these matters are to be decided on a case-by-case basis.

The House of Lords decision in the Miller/McFarlane cases failed to provide clarification. The Court made it clear in that case that “needs,” “compensation” and “sharing” are the three “strands” to be considered in applying the fairness standard, but it is unclear how those strands will work together in any particular case.

Miller/McFarlane resolved certain issues such as the relevance of conduct and special contribution but it has raised and left unclear and unresolved several critical issues such as whether equality of division should apply to all matrimonial property or only to “family assets” as opposed to “business and investment assets” and how assets generated by dual career marriages should be resolved.


El Salvador: Family Law



El Salvador is now a party to the Hague Convention on the Civil Aspects of International Child Abduction.

On June 1, 2007, the 1980 Convention on the Civil Aspects of International Child Abduction entered into force between the United States and El Salvador.  The Convention will not apply to parental child abduction cases between the U.S. and El Salvador that took place prior to June 1, 2007.  Wrongful retentions or removals that occurred after June 1 may qualify to be Hague Abduction Convention cases.

The Convention cannot be applied retroactively.  El Salvador’s accession to the treaty is an important step that will improve the possibility of resolving future abduction cases.

In general, the Convention has two main provisions:  to secure the prompt return of children wrongfully removed to or retained in any signatory country; and to ensure that the rights of parents for custody and access to their children under the law of one signatory country are respected in other signatory countries.