Preliminary
Private
international law is a set of procedural rules that determines which legal
system and which jurisdiction applies to a given dispute. These laws are
commonly used where there is a dispute between parties who originate from two
different regions and such disputes may be in contracts, matrimonial issues,
adoption of children and divoce, there is many areas where the disputes between
people of different origin may arise and when happen disputes a matter of
choice of law arise. A problem in these disputes which involve people of
different countries is the choice of law, selection of which law should apply
to settle the dispute. There is many international regulations and conventions
which established a number of principles and rules which is to be followed when
one choose a law to be used in his or her disputes. Take an example of a Council Regulation[1],
is among the acceptable international regulations which used to settle matters
concerning matrimonial disputes, divorce, adoption and other family related
disputes.
Main content
Rules and laws applicable in
solving matrimonial disputes
The
Council Regulation[2]
has a lot of proposed rules and principles which guide a person in
selecting a law which is to be used in settling his or her dispute. The
following are the proposed rules and principles provided by Council Regulation
to be used when one want to select a law to be applied in solving his or her
dispute.
Based on the principle of autonomy
of will, the law applicable to the matrimonial property
regime is designated by the spouses or future spouses through a convention
subject to the fulfillment of some formal conditions. In this principle, a
spouse is allowed under the regulation willingly to point or choose a law which
is to be used in solving a matrimonial dispute. An autonomy by a spouse to
choose a law is not left as it is but there is a number of laws or rules that
are to be followed when one choosing a law. This choice is limited to the
following laws expressly provided by article
16 of the regulation;
Law of the State where the spouses
(future spouses) or one of them has his common habitual residence at the time
of concluding the agreement. This rule direct the
spouses to choose a law of the state where a marriage was entered, it is not a
matter of nationality but a person can choose a law of a state where he or she
resided at a time when a marriage was concluded. In this rule a law can be
chosen to be used in solving disputes from either common habitual residence of
a husband or a wife at a time where a marriage between them was concluded.
Law of the State whose national is
one of the spouses at the time of concluding the agreement.
In choosing a law to be applicable in in deciding matrimonial disputes, a
spouse is required under this rules to choose a law which is connected to them
or one of the spouse’s nationality at the time where marriage agreement was
entered by the couple. A spouse is not allowed to choose a law out of that
limit, a spouse must choose either a law of his nationality or law of the forum
of his partner (wife). Under this rule no one can choose a law which is not
connected to nationality of one or both spouses for the purpose of deciding
matrimonial problems if there was an autonomy by spouses to choose a law to be
applicable in their dispute.
If the spouses have not concluded
an agreement on choice of applicable law for the matrimonial regime, the
law is determined by the habitual residence or nationality of one or both
spouses. This is provided under Article
17[3], and there is a number of rules which
go together with this principle. If the spouses due to any reason fails or
failed to conclude applicable law of solving matrimonial disputes a common
system will be used to choose a law regarding nationality of of both or one
spouses at time of marriage or a place of residence where a marriage was
celebrated.
The law of the State where is the
common habitual residence of the spouses at the time of their marriage,
respectively where the spouses choose their common habitual residence after the
marriage. If spouses fail to choose a law to be applied, a court or tribunal
may use a common system of looking the habitual residence of spouses at the
time where marriage was concluded. After marriage if the spouses choose a place
to establish their life then a court or a tribunal may use laws from that residential
area where the spouses resided at the first time after their marriage[4].
Nationality of the spouses or
spouse, nationality of the spouses or one of the spouse
may be used to determine a law to be used in solving matrimonial disputes. Laws
from a state of nationality of a men or women may be used in solving the
dispute between wife and husband of two diffent origins[5].
The law of the State with which the
spouses jointly have the closest connections, taking into account all the
circumstances, in particular the place where the marriage was celebrated. In
some circumstances, spouses conclude marriage at different places apart from
the home nations and residential areas. In some situations you may finds that a
marriage concluded abroad to a state which is not home nations or residence of
spouses and in these circumstances may led a court or tribunal which decide
matrimonial issues to use laws of where a marriage was concluded.
Rules of private international laws
applicable in divorce
The
Council Regulation[6]
also proposed a number of rules to be followed when one choose a law to be
applicable in divorce of spouses who originate from two different countries.
The regulation do not introduce new things different to rules applicable in
matrimonial disputes, in divorce a spouse is also required choose a law to be
used in divorce cases, if law is not selected by parties, a court or tribunal
which settle a dispute may consider
nationality of spouses, residential
areas of spouses at a time of marriage
and location where marriage
celebrated at the time of marriage.
Article
5 paragraph 1 of the Regulation[7]
provide that “the spouses may agree to
conclude a convention of designating the law applicable to divorce and legal
separation”. This means that, the spouse may choose a law to be applicable
in divorce but in selecting such laws the following rules must be put into
account; the law of the State where the spouses are habitually resident at the
time the agreement is concluded, the law of the State where the spouses were
last habitually resident, in so far as one of them still resides there at the
time the agreement is concluded; the law of the State of nationality of either
spouse at the time the agreement is concluded; the law of the forum.
In the absence of a choice by the
spouses, law of the State where the spouses are habitually
resident at the time the court is seised, law of the State where the spouses
were last habitually resident, provided that the period of residence did not
end more than 1 year before the court was seised, in so far as one of the
spouses still resides in that State at the time the court is seised, law of the
State of which both spouses are nationals at the time the court is seised or
law of the State where the court is seised may be used in divorce of partners
originate from two different countries with two different jurisdiction and
legal system.
If applicable law under article 5
or article 8 of the Regulation does not provide for divorce
or does not grant one of the spouses, because of belonging to one of the sexes,
the equal access to divorce or legal separation, the law of the forum shall be
applied. After selection of law as directed under Article 5 of the regulation,
if a selected law fail to give justice to both parties, then a law of the forum
may be used in conducting divorce activities and to dispense justice to all
parties.
The renvoi is excluded as per
Article 11 of the regulation[8].
Renvoi
is a situation of reffering a case or dispute to the foreign jurisdiction, in
dealing with divorce an issue of reffering a case to the outside jurisdiction
is not allowed. Only the laws of the forum or the laws of the state where a
court exist may be used apart from private international law[9].
Rules of private international laws
applicable in adoption
Inter-country adoption (ICA) can be defined as adoption
of a child by a person of another country. ICA may be more viable choice than
domestic adoption for many families especially those who want to adopt a
healthy infant. Adoption of children internationally is accompanied by many
rules which help to regulate disputes which may arise between adopters and
adopted. In some circumstances you may find that an adopted child after he or
she grown up, some of them start to be independent especially when they become
acknowledged that they were adopted. Some of them may want to go back to their
home cities where they comes from and this is where problems start.
The following are the rules used in the adoption of
children worldwide and the same rules used in solving disputes between adopters
and adopted children;
As the general
rule, after adoption (cross border and
domestic adoption), the rights, duties and obligations of children move from
original parents to adopters. After adoption, if it is a cross border adoption
an adopted child will be of a nationality same as adopters. After he or she
grow up the autonomy will arise where such adopted child may choose either to
continue being of a citizenship of adopters or to go back where he or she was
born but the procedures will be the same as a new person who ask for
citizenship in a country.
In case of
disputes, adopters may choose law to be applicable in solving their matter. A law to be chosen by parties is limited either to a law where adopters resided at a time of
adoption or a law of where an adopted
was born. Where there is a disputes connected to adopters and adopted,
parties may be given chance to choose a law to be used in resolving their
dispute. And such law must not go beyond the scope of rules settled that it
must be either a law where adopters
resided at a time of adoption or a
law of where an adopted was born and a court or tribunal will be bound to
apply laws selected willingly by the parties.
If no chosen
law to solve dispute by parties, then a common system may be used by the court by selecting law in regarding a place of born of an
adopted person or laws of a place where adopters resided at a time of adoption
and sometime laws of their home nations. A court will choose either laws from
nation where an adopted comes from or they may choose laws from home countries
of adopters to be used in settling a dispute between parties. Always original
nationality prevail nationality of choice, an adopted kid after become old
enough he may choose either to go back to live in a country where he was born
or to continue reside in a country where his adopters reside. If an adopted
want to go back home, the same procedures may be used by such person to request
citizenship in a country that he or she want to go if such country do not allow
double citizenship.
Rules applicable in the recognition and enforcement of
foreign judgements in private international law
The enforcement of foreign
judgments (decision to use foreign court’s decision in resolving
domestic dispute) is the recognition and enforcement in one jurisdiction of judgments
rendered in another ("foreign")
jurisdiction. Foreign judgments may be recognized based on bilateral or multilateral treaties or understandings, or unilaterally without an
express international agreement. The "recognition" of a foreign
judgment occurs when the court of
one country or jurisdiction accepts a judicial decision made by the courts of
another "foreign" country or jurisdiction, and issues a judgment in
substantially identical terms without rehearing the substance of the original
law suit. In using foreign judgments there is a number of rules that is to be
followed as following;
There are judgments that are subject to
recognition and enforcement. Considering article 21 and art 46 of the
Regulation[10], are
subject to recognition and enforcement the following, (a) judgments (of divorce
and those involving the exercise of parental authority) pronounced in a Member
State in judicial proceedings instituted after the implementation of
Regulation, (b) authentic instruments (concerning the divorce and the exercise
of parental authority) concluded after the implementation of the Regulation and
enforceable in a Member State and (c) agreements betwen parties privind
concerning the exercise of parental authority, agreements concluded after the
implementation of the Regulation and enforceable in the Member State of origin.
The procedure for recognition and
enforcement of a judgment. According to art. 21 paragraph (1) of the
Regulation, judgments on matters of divorce and exercise of parental authority
given in a Member State are recognized in other Member States without the need
to resort to any procedure. Therefore, it is about the rightful recognition of
these judgments and about their direct enforcement, without the need for an
exequatur procedure. Therefore, the judgment pronounced in a Member State shall
be effetive throughout the European Union, without the need for any procedure
for updating the civil registry documents of the spouses based on a judgment
pronounced in other Member State in matters of divorce, legal separation or
annulment of the marriage, which cannot be subject to any other means of
appeal, in accordance with the law of that Member State. This judgment is
effective, under the same conditions also concerning the surname of the spouses
after divorce (preservation or restoration of the surname had before marriage,
if appropriate).
There
is many other principles and rules which is used in determining application of
foreign judgements in other jurisdictions. Not every foreign judgment can be
accepted and used in decision of domestic disputes but there are some
limitations and criteria to follow in using foreign judgments.
BIBLIOGRAPHY
CONVENTIONS
Council Regulation EU
No 1259/2010 of 20 December 2010
Romanian Civil Code of September 2003
Council Regulation (EC)
no. 2201/2003 of 27 November 2003
ONLINE SOURCES
www.wikipedia.com
www.europeanregulation.com
https://www.merriam-webster.com/legal/renvoi
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