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Proposals to harmonise the divorce laws across Europe could set back the position of women in the UK by 30 years, according to leading family law practitioners.
The Family Law Bar Association (FLBA) attended the recent Conference on Judicial Co-operation in Cross Border Family Matters, which was held in Italy and organised by the European Commission and the Italian Presidency of the Council of the European Union. The session covered new legislation on disputes between those with parental responsibility for children and harmonisation of the law applicable to divorce proceedings. There was also talk of a controversial green paper, due to come out next year.
"The green paper is looking at the applicable laws to decide which legal system is chosen to determine a property dispute, but there's also talk of harmonisation of substantive law as well," said Andrew McFarlane QC, chairman of the FLBA. "At the moment, the current treaty only allows the harmonisation of procedural rules, whereas the Valery Giscard d'Estaing's EU Constitution talks about the harmonisation of the substantive law." However, McFarlane added that a paper has yet to be published, even in draft form.
"Clearly, the law as we understand it here and on the Continent and in virtually all the member states is so different on the division of property for married and unmarried couples, and also the ability to leave property on your death and make a will is very different," he said. For example, as the FLBA points out, in other member states there is little or no facility for the court to vary the ownership of property on divorce and no distinction between the way a court deals with the property of a married or an unmarried couple. There are also strict laws of succession and inheritance that apply in many EU states, with restrictions on the freedom of a person to override these provisions by means of a will, whereas in England and Wales the Inheritance (Provision for Family and Dependants) Act 1975 can correct the effect of a will or intestacy law to provide reasonable financial provision for dependants of the deceased.
According to McFarlane, any European harmonisation would be likely to be in favour of a Southern European model. "They aren't going to harmonise in our direction," he continued. "Before the Matrimonial Causes Act 1973 came in, we were forced to look at trusts and try to bend the property law to achieve a fairer settlement. But now the English courts for 30 years have been able to move property rights around, irrespective of in whose name property is said to be." Women's rights could be set back very substantially, he added.