3rd International Family Law Day in Berlin from 11th to 12th. February 2022
The Third International Family Law Day of the Family Law Working Group took place from February 11th to 12th, 2022 and was a well-attended and successful event with almost 100 participants. The presentations by the renowned speakers aroused great interest and encouraged the audience to make comments and questions - but only in the chat. Because the conference had to take place online due to the corona pandemic.
Attorney Eva Becker, chairwoman of the family law working group, welcomes the guests on the screen
The new Brussels IIb Regulation comes into force on August 1, 2022. It contains the rules on jurisdiction, recognition and enforcement of decisions in matrimonial matters and matters of parental responsibility and child abduction in the European Union. The regulation applies directly and is superior law to the other legal acts of the European Union: the Rome III Regulation, the EU Maintenance Regulation, the Hague Child Protection Convention and the Hague Child Abduction Convention.
Prof. Dr. In her structural comparison, Katharina Lugani from Heinrich Heine University in Düsseldorf found few radical changes, but many changes of small and medium size, few changes in matrimonial matters, but many in child matters.
The best interests of the child, already the focus of the previous regulation “Brussels IIa”, are emphasized even more clearly. In addition, the procedures have been simplified and accelerated in comparison, and at the same time there is more attention to detail for legally secure and transparent procedures, explained Prof. Lugani in her lively and well-structured lecture. The DAV also took part in the revision of the regulation, which is so important for family law, said lawyer Eva Becker, chairwoman of the family law working group, at the beginning of the conference. The consideration of children's rights to be heard in the proceedings has been included in the regulations.
Divorce outside of court proceedings
In Germany, the divorce monopoly lies with the courts; marriages of foreigners can only be divorced by a judge in this country. Things look completely different around the world; private divorces are widespread in many different forms. For example, in Jewish law the divorce certificate is handed out; in East Asia, South and Central America the marriage can be dissolved by contract. There is also a trend towards more autonomy in Europe, said lawyer Dr.
Jennifer Antomo, former academic councilor at the University of Mainz.
Out-of-court divorce was first introduced in Italy in 2014, but marriages with children must be dissolved by the public prosecutor. A marriage without children can come to a legal end in front of the registry office, for a fee of 16 euros. Spain was the second EU country to allow divorce through a judicial officer since 2015, and France recently established the most extreme form of out-of-court divorce in Europe. A divorce agreement, supported by a lawyer, is forwarded to a notary who registers the divorce. There is no examination of the content. Jennifer Antomo used numerous examples to show the complications that can arise when recognizing private divorces from third countries or the EU. The question is often whether a state authority was involved in any way in the divorce abroad. This could also be, for example, a Sharia court, i.e. a spiritual body. Notary or judicial officer divorces are recognized, but things become difficult when there is no longer any evidence of state involvement.
Cross-border maintenance
Jörg-Michael Dimmler, judge at the Stuttgart Higher Regional Court, spoke about cross-border maintenance. The application for modification, preclusion and enforcement are among the special challenges faced by family law practitioners.
Dimmler spoke of the “three hot irons” in the already “impenetrable jungle” of international family law. When the conditions underlying a decision or agreement change, those involved have a legitimate concern to adjust the maintenance obligations. This applies not only to domestic, but also to foreign maintenance titles. However, international jurisdiction must first be examined; in Germany this is necessary in every instance. Since June 1, 2011, responsibility here has been based on the European Maintenance Regulation, or EuUntVO for short. It applies universally, including towards third countries.
Dimmler explained that things could become more complicated when it comes to recognizing decisions from third countries. The first thing that needs to be checked is whether it is actually a maintenance decision or whether it was a matrimonial property dispute. There are also benefits that serve both maintenance and property rights purposes. These cases can then only partially be subject to the EuUntVO. Jörg Michael Dimmler provided numerous examples of the importance of the Foreign Maintenance Act (AUG), when the Hague Maintenance Protocol (HUP) is applied and when the Hague Maintenance Convention (HUÜ) comes into play. In enforcement law, it is important to keep in mind that a domestic title may have different legal effects abroad than one imagines. The Federal Office of Justice could help here.
recognition of parenthood
The recognition of parenthood between EU member states will play a greater role in the future. Children are not allowed to have only two parents everywhere, and altruistic surrogacy is not taboo in all member states. In her 2020 State of the Union speech, Commission President Ursula von der Leyen said, among other things: “In this context, I will also work for the mutual recognition of family relationships in the EU, if you are a father or mother, you are in every country Father or mother". A group of experts from the European Commission was recently set up to address these questions in order to help harmonize conflict of law and recognition law. Prof. Dr. Susanne Lilian Gössl from the Christian Albrechts University in Kiel is a member of this expert group.
In her lecture, Professor Gössl gave an overview of the national regulations and finally reported on planned legislative proposals in the EU. What the ECJ decided in December 2021 should be implemented: A relationship between parents and child recognized by one EU state must also be recognized by all other EU states. Legal parenthood is sufficient for this. It doesn't matter whether it is also the biological parent. The ECJ decision concerned a child for which two women in Spain had been certified as legal parents. A child with two mothers is currently only possible in this country through stepchild adoption. But reforms can be expected here, as Prof. Gössl also stated in her conclusion. The chances of success in unifying law at the European level are rather poor because not all member states will agree. However, an act of enhanced cooperation could be adopted.
Here Ulrike Janzen spoke up. She heads the department for private international law in the Federal Ministry of Justice and asked whether, in addition to same-sex parenthood, issues such as surrogacy or multiple parenthood also play a role in the expert group. Also Prof. Dr. Frank Klinkhhammer, judge of the Family Senate at the Federal Court of Justice, intervened in the debate when it came to the recognition of court decisions and “public documents,” according to the EU expert group's legislative plans. Klinkhammer doubted whether one should blindly trust documents, for example in the birth register. In any case, he did not want to see documents that could also be incorrect on the same level as court decisions.
Mediation across borders
On the topic of “Use of mediation in child abduction cases,” Dr. Andrea Schulz, German liaison officer in the French Ministry of Justice, connected from Paris, gave a brilliant lecture. Again, as at the beginning of the conference, it was about the Brussels IIb Regulation, which comes into force on August 1, 2022 and offers parties, lawyers and courts more legal certainty and more leeway. Mediation should also be expressly encouraged for the benefit of the children. However, cross-border mediation requires a lot of specialist knowledge, training and experience. There was another important contribution from the audience. Lawyer and mediator Fernández de Castillejo y Peetsch is chairwoman of “MiKK”, a non-profit association that plays a key role in organizing mediation, as Andrea Schulz already mentioned in her lecture. The lawyer has already carried out many cross-border mediations and she offered all conference participants the opportunity to obtain first-hand information from her and to benefit from her wealth of experience.
Current case law of the ECHR on family law
Prof. Dr. Robert Uerpmann-Wittzack, Maîtrise en droit, University of Regensburg, in his lecture. From the decisions of the last two years he was able to develop guidelines from the ECtHR, which he presented at the end of his detailed and meaningful lecture. Above all, this means that the ECHR protects family life, not marriage and family like the Basic Law. The ECHR therefore stands for the actual family, relationships in which partners live together and want to stand up for each other, but also relationships between children and their closest families; the child's well-being also plays an important role.
In the trans-European cultural struggle between liberality and tradition, the ECHR stands “unwaveringly and calmly” in support of the basic liberal concept of the ECHR, said Uerpmann-Wittzack.
The issue of service in an international context, which at first glance seems rather dry, became the focus of interest when the Frankfurt Higher Regional Court ruled out the recognition of a Canadian divorce in November 2021 because the divorce application had been served via WhatsApp. The “EU Evidence Taking and Service Regulation” are new regulations that will come into force on July 1, 2022. Prof. Dr. Wolfgang Hau from the Ludwig Maximilian University of Munich provided information about the innovations in a surprisingly entertaining and fresh way.
Institution International Family Law Day
It was above all the practical topics, presented by excellent speakers, that made up the 3rd International Family Law Day. The lectures stimulated discussions, which were also possible in online format thanks to the technology. It was thanks to Ruth de Olózaga and her team at the event agency Conventionpartners that this mostly worked smoothly.
International Family Law Day has become an institution, a guarantee of detailed information and analysis on a complicated subject. The participants from the legal profession, science, the judiciary and the Federal Ministry of Justice showed their enthusiasm in the chats. However, everyone agreed that the direct and personal exchange of experiences and information among experts cannot be completely replaced by an online event. The next International Family Law Day is scheduled to take place in two years, then hopefully again “live and in
color,” as Eva Becker, chairwoman of the Family Law Working Group, said in farewell.