Divorce slips through holes in treaty text

Date: 10/07/1997

By Simon Coss

AN EU treaty clause which would have allowed member states to harmonise their rules on divorce and child custody appears to have got lost in the confusion surrounding the outcome of last month's Amsterdam summit.

EU leaders agreed in Amsterdam that cooperation in civil court proceedings would change from an intergovernmental to a Community competence - but failed to include previous provisions which could have used been to introduce EU-wide rules governing marital split-ups in the new treaty text.

The move to communitarise cooperation in non-criminal proceedings is aimed at speeding up the exchange of information between national courts.

Initially, the European Commission welcomed the change-over, anticipating a much greater say in an area where it had formerly been obliged to play second fiddle to national officials. But on closer examination of the new treaty, justice and home affairs experts have noticed that there appear to be some rather odd omissions in the new judicial cooperation rules.

“It seems there has been an oversight. Cooperation in civil matters has moved, but divorce and custody for children of divorced parents appear to have fallen out,” said one aide to Justice and Home Affairs Commissioner Anita Gradin.

The confusion centres around a key phrase in the new treaty which says that EU-level action can be taken to coordinate civil court proceedings “in so far as necessary for the proper functioning of the internal market”.

Some experts say it is not at all clear whether divorce and custody rules have any real bearing on the single market, which is essentially an economic entity.

They believe that, in addition, it will no longer be possible for such issues to be dealt with under the treaty's intergovernmental 'pillar' once Amsterdam comes into force. While negotiators clearly moved the competence out of this arena, they failed to reinsert it somewhere else.

“There now seems to be no treaty article which covers this area. I suppose you could have some sort of cooperation between governments outside of the EU framework, but there is no obvious treaty provision,” said one Council of Ministers insider.

If the confusion is not cleared up before the new treaty is signed in the autumn, it could jeopardise efforts to ratify the Brussels II Convention, which aims to find some common ground between differing national divorce laws. That convention would require national governments to recognise divorces granted in another member state, but would normally only allow divorces to be granted in the country where spouses are 'habitually' resident.

Calls for clarification of the current situation have been mounting in recent years as more people move around the Union. The rise in mobility has meant an attendant increase in cross-border divorce and custody cases.