The European Union and Party Autonomy in Private International Family Law

A paradigm shift, from State control to self-determination of individuals, is currently occurring within our society. Not so long ago, divorces, same-sex marriages, registered partnerships, birth control or in vitro fertilization were hardly conceivable whereas it is now accessible, or at least debated, in most European countries. This has been largely influenced by the fact that citizens request more liberty to arbitrate their own existence as well as their relationships and families, without exorbitant control or interference by the State. In parallel, changes in technology and modern means of transportation have generated an exponential increase of mobility across the world and EU Member States. People may travel, work and live in different countries without having to make excessive sacrifices with regards to their family, their values and their culture. Equally, access to education and learning of new languages has been greatly democratised throughout the last decades.

Those evolutions have been reflected within national but also international and European law, including in the field of private international law where it entails that parties should have some flexibility to choose the court to hear their dispute and the law to be applied in the process.  At European Union level, the first step towards greater autonomy for European families has been initiated by the Court of Justice of the European Union with the Garcia Avello ruling in 2003 which forced Belgian authorities to recognise the Spanish family name system.

In parallel, the EU received a competence to regulate private international law which has led to the adoption of six European family Regulations thus far: Brussels II (jurisdiction for divorce and parental responsibility), Maintenance, Successions, Rome III (law applicable to divorce) and Property regimes (one for spouses and another for registered partnerships). This thesis discusses each of these instruments and analyses their approach to autonomy. It demonstrates that in addition to the explicit autonomy, that has been included in all instrument adopted after Brussels II, European regulations offer implicit and indirect autonomy. The former is initiated by the lack of hierarchy among connecting factors available to determine the forum as well as the lack of consistency between the choice of court and the default provision. Parties are consequently granted opportunities to pick a forum which would not have been available otherwise. The latter form of autonomy is generated by the geopolitical status of EU family law which entails that not all Member States are parties to all instruments. As a result, parties may manipulate the substantive outcome of their dispute by seizing a court that will apply different conflict rule and thereby rely on a different applicable law.

In light of the conclusions drawn throughout the research, this thesis puts forward two proposals on jurisdiction and applicable law respectively. They aim at harmonising the treatment of party autonomy while securing flexibility and providing an opportunity to parties to prevent the fragmentation of proceedings and laws applicable to their family disputes.