Conflict of Laws class notes – 2019/2020 (semester 2)
Table of contents
Marriage and divorce p.2
Divorce and parental responsibility p.4
Child abduction p.6
Jurisdiction p.8
Weaker party protection p.11
Recognition and enforcement p.13
Applicable law: contracts p.15
Applicable law: torts p.19
Service p.24
Evidence p.27
1
,Marriage and divorce
Legal definition of marriage
No universal definition, but some common elements in different legal systems
Special form of contract - sui generis
Can have third party effect (e.g. when selling a house)
2 natural persons
Case study
Italian man wants to marry Dutch woman
They living in US
They want to get married in Mauritius
--> jurisdiction (civil servant to celebrate the marriage)
--> which law apply
---> recognition and enforcement
US is the state of habitual residence and if they have a child they need to know to what nationality
that child is entitled
Mauritius law states that anyone can get married there, civil servant needs to determine which law
applies
--> law of nationality
--> law of habitual residence
--> law of place of celebration
The Hague Marriage Convention 1978 --> recognition of marriage
- only ratified by 3 countries, NL, Australia Luxembourg
Possible grounds to non-recognition of a marriage
Polygamy
Minors
Same-seks
Forced/arranged
Incest
Lacking mental capacity
Cross-cultural/religious
Sham marriages (for a residency permit)
No unanimity within EU regarding gay marriage - autonomous interpretation --> so no recognition in
the whole EU
--> ECJ for residency permits there is an obligation to recognize the marriage in the context of that
specific right
Case study
- Italian man married to Dutch woman, living in US got married in Mauritius
- woman wants to get divorced
--> jurisdiction (court with order to dissolve the marriage) Dutch court
--> which law applies: Brussels II-bis
---> recognition and enforcement
2
, Hague Divorce Convention 1970
Luxembourg Convention 1967
Brussels II-bis Regulation
Marriage dissolution International jurisdiction Applicable law Recognition
European regulations Brussels II-bis Rome III Brussels II-bis
International conventions The Hague '70
Luxembourg '67
Domestic PIL (Dutch) Art 1-14 DCCP (Rv) Boek 10:56 BW* Art 10:57-59 BW
*lex fori applies
Brussels II-bis
- within the scope?
material -Art 1 lid 1 sub a - divorce (not civil partnership)
temporal - art 72&64 1 March 2005 (procedure commenced after this date)
geographical - art 6&7 habitual residence in a member state
Jurisdiction art 3 - no hierarchy
- petitioner can choose if there are more states with jurisdiction, where it has been filed for then
other country has to adjourn the proceedings
3
Table of contents
Marriage and divorce p.2
Divorce and parental responsibility p.4
Child abduction p.6
Jurisdiction p.8
Weaker party protection p.11
Recognition and enforcement p.13
Applicable law: contracts p.15
Applicable law: torts p.19
Service p.24
Evidence p.27
1
,Marriage and divorce
Legal definition of marriage
No universal definition, but some common elements in different legal systems
Special form of contract - sui generis
Can have third party effect (e.g. when selling a house)
2 natural persons
Case study
Italian man wants to marry Dutch woman
They living in US
They want to get married in Mauritius
--> jurisdiction (civil servant to celebrate the marriage)
--> which law apply
---> recognition and enforcement
US is the state of habitual residence and if they have a child they need to know to what nationality
that child is entitled
Mauritius law states that anyone can get married there, civil servant needs to determine which law
applies
--> law of nationality
--> law of habitual residence
--> law of place of celebration
The Hague Marriage Convention 1978 --> recognition of marriage
- only ratified by 3 countries, NL, Australia Luxembourg
Possible grounds to non-recognition of a marriage
Polygamy
Minors
Same-seks
Forced/arranged
Incest
Lacking mental capacity
Cross-cultural/religious
Sham marriages (for a residency permit)
No unanimity within EU regarding gay marriage - autonomous interpretation --> so no recognition in
the whole EU
--> ECJ for residency permits there is an obligation to recognize the marriage in the context of that
specific right
Case study
- Italian man married to Dutch woman, living in US got married in Mauritius
- woman wants to get divorced
--> jurisdiction (court with order to dissolve the marriage) Dutch court
--> which law applies: Brussels II-bis
---> recognition and enforcement
2
, Hague Divorce Convention 1970
Luxembourg Convention 1967
Brussels II-bis Regulation
Marriage dissolution International jurisdiction Applicable law Recognition
European regulations Brussels II-bis Rome III Brussels II-bis
International conventions The Hague '70
Luxembourg '67
Domestic PIL (Dutch) Art 1-14 DCCP (Rv) Boek 10:56 BW* Art 10:57-59 BW
*lex fori applies
Brussels II-bis
- within the scope?
material -Art 1 lid 1 sub a - divorce (not civil partnership)
temporal - art 72&64 1 March 2005 (procedure commenced after this date)
geographical - art 6&7 habitual residence in a member state
Jurisdiction art 3 - no hierarchy
- petitioner can choose if there are more states with jurisdiction, where it has been filed for then
other country has to adjourn the proceedings
3
