Cross-border divorce law : Brussels II bis / Máire Ní Shúilleabháin.
2010
KJE1105 .N57 2010 (Map It)
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Details
Title
Cross-border divorce law : Brussels II bis / Máire Ní Shúilleabháin.
Published
Oxford ; New York : Oxford University Press, 2010.
Call Number
KJE1105 .N57 2010
ISBN
9780199581191 (hbk. : alk. paper)
0199581193 (hbk. : alk. paper)
0199581193 (hbk. : alk. paper)
Description
xlvii, 314 pages ; 24 cm.
System Control No.
(OCoLC)631236834
Summary
"This book examines the divorce aspects of the Brussels II bis Regulation (Regulation 2201/2003). It gives detailed consideration to the new jurisdictional rules and to the likely interpretation of the core jurisdictional concept of 'habitual residence'. The scope of the Regulation is analyzed, and particular attention is given to its possible application to civil partnerships and same-sex marriages. The book also analyzes the Regulation's impact on ancillary relief matters and its interaction with related measures of Community and national law in that context. The new recognition procedures are considered in detail, as are the defences to recognition, and the wider consequences of automatic recognition are assessed. The book provides in-depth coverage of relevant case-law of the national and Community courts, and particular attention is given to the likely impact of the cases decided under the 1968 Brussels Convention and under Regulation 44/2001 (including the Owusu case)"-- Provided by publisher.
Bibliography, etc. Note
Includes bibliographical references (pages [287]-301) and index.
Record Appears in
Table of Contents
Tables of Cases
xiii
Tables of Legislation
xxiii
List of Abbreviations
xxxix
Introduction
xlv
ch. 1
Background, Context, and Principles of Interpretation
1
I.
Brussels II bis: Origins and Legislative History
1
The Brussels I Convention
1
International Cooperation in Matters of Status
2
The Initial Development of the Brussels II Project
3
Justifications for the Brussels II Project
4
The Treaty of Amsterdam: From Intergovernmentalism to Supranationalism
7
Rome III
10
Other Subsequent and Future Developments
13
II.
Brussels II (bis) versus Alternative Options
15
Introduction
15
Amendment of French Law
19
Bilateral Agreement Between Germany and France
20
1970 Hague Convention
21
New Single Convention
26
Convention on Recognition of Marriage and Divorce
29
Negative Integration: Direct Application of the ̀Free Movement of Persons' Doctrine by the ECJ
30
Harmonization of Substantive Divorce Law
32
Conclusion
34
III.
Interpretation of Brussels II bis
37
Ideal of Uniform Interpretation
37
Principles of Interpretation
40
ch. 2
Habitual Residence, Domicile, and Other Connecting Factors
35
I.
Introduction
1
II.
Habitual Residence
4
Introduction
4
Indicative Statements of the Nature of ̀Habitual Residence'
7
̀Habitual Residence': Duration of Residence and Intention to Remain
11
̀Habitual Residence': Other Factors
23
Overview and Conclusion: The Likely Interpretation of ̀Habitual Residence' under Article 3 Brussels II bis
41
III.
Comparing ̀Domicile' and ̀Habitual Residence'
46
Nature of ̀Domicile'
46
̀Domicile' versus ̀Habitual Residence'
48
IV.
Other Connecting Factors
53
Introduction
53
Nationality
54
Agreed Forum
61
Place of Celebration
65
V.
Context of Use of Connecting Factors
66
VI.
Conclusions
71
ch. 3
Scope of Brussels II bis
83
II.
Geographic Scope
2
General
2
UK Context
3
III.
Temporal Scope
22
IV.
Personal Scope
26
V.
Material Scope
28
Introduction
28
Primary versus Ancillary Proceedings
29
Subject-Matter Jurisdiction
30
Meaning of ̀Matrimonial Matters'
34
Which S̀tatus' Proceedings are Included/Excluded?
54
VI.
Conclusion
76
ch. 4
Jurisdictional Bases Under Brussels II bis
131
II.
Jurisdictional Grounds under Article 3 Brussels II bis
3
Overview of Jurisdictional Grounds under Article 3(1)
3
̀The Spouses are Habitually Resident' (First Indent)
6
̀The Spouses were Last Habitually Resident, Insofar as One of Them Still Resides There' (Second Indent)
7
̀The Respondent is Habitually Resident' (Third Indent)
8
Ìn the Event of a Joint Application, Either of the Spouses is Habitually Resident' (Fourth Indent)
9
̀The Applicant is Habitually Resident if He or She Resided There for at least a Year Immediately Before the Application was made' (Fifth Indent)
15
̀The Applicant is Habitually Resident if He or She Resided There for at least Six Months Immediately Before the Application was made and is Either a National of the Member State in Question or, in the Case of the United Kingdom and Ireland, has His or Her "Domicile" There' (Sixth Indent)
18
̀Member State... of the Nationality of Both Spouses or, in the Case of the United Kingdom and Ireland, of the "Domicile" of Both Spouses' (Seventh Indent)
20
Derivative Jurisdictional Grounds under Brussels II bis
21
Proof and Examination of Jurisdiction under Article 3
22
III.
Overview of Direct Jurisdiction under Brussels II bis
23
Critical Analysis of the Cumulative Effect of the Article 3 Bases
23
Particular Impact of Article 3 in English Law
27
IV.
Residual Grounds for Jurisdiction under Brussels II bis
32
Introduction
32
Interpreting Articles 6 and 7
33
Residual Jurisdiction under English Law
40
Residual Jurisdiction: Analysis and Reform
42
V.
Relationship Between Brussels II bis Jurisdictional Grounds and Jurisdictional Bases for Ancillary Relief
45
Introduction
45
Jurisdiction in Ancillary Financial Matters: Background and Context
48
Unity of Proceedings: The Impact of Brussels 1
51
Future Developments: Maintenance Regulation 4/2009 and the Matrimonial Property Green Paper
56
Jurisdiction to Take ̀Provisional, Including Protective, Measures'
59
Conclusions
63
VI.
Overview and Analysis
64
ch. 5
Declining Jurisdiction Under Brussels II bis
185
I.
Introduction and Background
1
II.
Lis Pendens under Brussels II bis
4
Introduction to Article 19
4
Material Scope of Lis Pendens Rule under Article 19
6
Defining S̀eisin' under Article 19
11
Conclusion
15
III.
Remaining Scope of Application of Forum Non Conveniens
16
Introduction
16
Forum Non Conveniens in Intra-EU Conflicts: Declining Jurisdiction in Favour of Another Member State
19
Forum Non Conveniens in Extra-EU Conflicts: Declining Jurisdiction in Favour of a Third Country
23
IV.
Declining Jurisdiction: Relationship Between Brussels II bis and Ancillary Proceedings
37
Introduction
37
Declining Jurisdiction: Relationship Between Brussels I and II bis
40
Conclusion
44
V.
Critical Analysis of Brussels II bis Rules on Declining Jurisdiction
46
Particular Impact of Curtailment of Forum Non Conveniens in Matrimonial Cases
46
Declining Jurisdiction and the Protection of Human Rights
53
Some Suggested Reforms
55
Inadequacy of Choice-of-Law Solutions
59
VI.
Conclusion
62
ch. 6
Recognition of Matrimonial Decrees Under Brussels II bis
231
II.
Recognition under the Family Law Act 1986 and under Brussels II bis: A Comparison
2
Recognition under the ̀Traditional Rules' of the 1986 Act
2
Recognition under Brussels II bis
7
Procedures for Recognition: A Comparison
18
Conclusion
23
III.
Defences to Recognition under Brussels II bis
28
Defences to Recognition and Article 6(1) ECHR
30
Mandatory versus Discretionary Defences
36
Public Policy Defence (Article 22(a) Brussels II bis)
39
Natural Justice Defence (Article 22(b) Brussels II bis)
54
Irreconcilable Judgments (Article 22(c) and Article 22(d) Brussels II bis)
57
Conclusion
64
IV.
Consequences of Recognition
65
Introduction: Consequences of Recognition under English Law
65
Consequences of Recognition under Brussels II bis
71
Conclusion
77
V.
Conclusion
79
ch. 7
Final Observations
281
II.
General Assessment
2
III.
English Law Perspective
6
Bibliography
287
Index
303