15. The Convention on Celebration and Recognition of the Validity of Marriages (The Hague, 14 March 1978).

I will now briefly outline the four conventions concerning the matter of personal and pecuniary relations inside marriage, especially as what concerns rights and obligations of spouses.

The first of these instruments is the Convention on Celebration and Recognition of the Validity of Marriages (The Hague, 14 March 1978), drawn up by the Hague Conference On Private International Law (44), which replaces in the relations between the States who are Parties to it, the Convention Governing Conflicts of Laws Concerning Marriage, concluded at The Hague, the 12th of June 1902 (45).

Scope of this act is to facilitate the celebration of marriages and the recognition of the validity of marriages. As concerns the celebration of marriages, following basic principles are provided for by the Convention:

• the formal requirements for marriages shall be governed by the law of the State of celebration (Article 2);
• a marriage can be celebrated
• where the future spouses meet the substantive requirements of the internal law of the State of celebration and one of them has the nationality of that State or
• habitually resides there; or
• where each of the future spouses meets the substantive requirements of the internal law designated by the choice of law rules of the State of celebration (Article 3);
• The application of a foreign law may be refused only if such application is manifestly incompatible with the public policy ("ordre public") of the State of celebration (Article 5).

• a marriage celebrated by a diplomatic agent or consular official in accordance with his law shall similarly be considered valid in all Contracting States, provided that the celebration is not prohibited by the State of celebration (Article 9);
• where a marriage certificate has been issued by a competent authority, the marriage shall be presumed to be valid until the contrary is established (Article 10);
• a Contracting State may refuse to recognize the validity of a marriage only where, at the time of the marriage, under the law of that State
• one of the spouses was already married; or
• the spouses were related to one another, by blood or by adoption, in the direct line or as brother and sister; or
• one of the spouses had not attained the minimum age required for marriage, nor had obtained the necessary dispensation; or
• one of the spouses did not have the mental capacity to consent; or
• one of the spouses did not freely consent to the marriage (Article 11);
• a Contracting State may refuse to recognize the validity of a marriage where such recognition is manifestly incompatible with its public policy ("ordre public") (Article 14).

The Convention on the law applicable to matrimonial property regimes (The Hague, 14 March 1978) (46) aims to establish common provisions concerning the law applicable to matrimonial property regimes.

The Convention does not apply to:

• maintenance obligations between spouses;
• succession rights of a surviving spouse;
• the capacity of the spouses (Article 1).

As a general rule, the matrimonial property regime is governed by the internal law designated by the spouses before marriage (Article 3) (47). If the spouses, before marriage, have not designated the applicable law, their matrimonial property regime is generally governed by the internal law of the State in which both spouses establish their first habitual residence after marriage (Article 4). During marriage the spouses may subject their matrimonial property regime to an internal law other than that previously applicable (Article 6) (48). The law applicable under the Convention continues to apply so long as the spouses have not designated a different applicable law and notwithstanding any change of their nationality or habitual residence (Article 7) (49).

As a general rule, the effects of the matrimonial property regime on the legal relations between a spouse and a third party are governed by the law applicable to the matrimonial property regime in accordance with the Convention (Article 9). The marriage contract is valid as to form if it complies either with the internal law applicable to the matrimonial property regime, or with the internal law of the place where it was made. In any event, the marriage contract shall be in writing, dated and signed by both spouses (Article 12). The designation of the applicable law by express stipulation shall comply with the form prescribed for marriage contracts, either by the internal law designated by the spouses, or by the internal law of the place where it is made. In any event, the designation shall be in writing, dated and signed by both spouses (Article 13).

Finally, it must be noticed that the application of the law determined by the Convention may be refused only if it is manifestly incompatible with public policy ("ordre public") (Article 14).

17. The Convention on the Recognition of Divorces and Legal Separations (The Hague, 1 June 1970).

The Convention on the Recognition of Divorces and Legal Separations (The Hague, 1 June 1970) (50) aims basically to facilitate the recognition of divorces and legal separations obtained in their respective territories; it applies to the recognition in one Contracting State of divorces and legal separations obtained in another Contracting State which follow judicial or other proceedings officially recognized in that State and which are legally effective there. The Convention does not apply to findings of fault or to ancillary orders pronounced on the making of a decree of divorce or legal separation; in particular, it does not apply to orders relating to pecuniary obligations or to the custody of children (Article 1).

According to Article 2, such divorces and legal separations shall be recognized in all other Contracting States if, at the date of the institution of the proceedings in the State of the divorce or legal separation ("the State of origin")

• the respondent had his habitual residence there; or
• the petitioner had his habitual residence there and one of the following further conditions was fulfilled
• such habitual residence had continued for not less than one year immediately prior to the institution of proceedings;
• the spouses last habitually resided there together; or
• both spouses were national of that State; or
• the petitioner was a national of that State and one of the following further conditions was fulfilled
• the petitioner had his habitual residence there; or
• he had habitually resided there for a continuous period of one year falling, at least in part, within the two years preceding the institution of the proceedings; or
• the petitioner for divorce was a national of that State and both the following further conditions were fulfilled
• the petitioner was present in that State at the date of institution of the proceedings and
• the spouses last habitually resided together in a State whose law, at the date of institution of the proceedings, did not provide for divorce.

The recognition of a divorce or legal separation shall not be refused

• because the internal law of the State in which such recognition is sought would not allow divorce or, as the case may be, legal separation upon the same facts, or,
• because a law was applied other than that applicable under the rules of private international law of that State.

• when, at the time it was obtained, both the parties were nationals of States which did not provide for divorce and of no other State (Article 7);
• if, in the light of all the circumstances, adequate steps were not taken to give notice of the proceedings for a divorce or legal separation to the respondent, or if he was not afforded a sufficient opportunity to present his case (Article 8);
• if a divorce or legal it are incompatible with a previous decision determining the matrimonial status of the spouses and that decision either was rendered in the State in which recognition is sought, or is recognized, or fulfils the conditions required for recognition, in that State (Article 9);
• if such recognition is manifestly incompatible with their public policy ("ordre public") (Article 10).

18. The Convention on Jurisdiction and the Recognition and Enforcement of Judgements in Matrimonial Matters (Brussels, 28 May 1998 - "Brussels II Convention").

The Convention on Jurisdiction and the Recognition and Enforcement of Judgements in Matrimonial Matters ("Brussels II Convention") has been signed by Member State governments in Brussels on 28 May 1998; it has been adopted on basis of Article K 3 of the Treaty on European Union (Maastricht Treaty) and must therefore be ratified by the Member States (51); the act has been drafted according to the same pattern of the 1968 Convention on Civil and Commercial Matters (52).

Today, EU citizens travel freely between Member States and marriages involving couples from different national backgrounds are no longer exceptional. If these marriages run into difficulty, it is important that any decision concerning the marriage bond be given widespread recognition. Otherwise, couples may face uncertainty as to whether, for example, their divorce will be recognised if one or other returns to their own country or, indeed, moves to another EU State. The Convention reflects the increasing mobility in the EU encouraged by the internal market and freedom of movement within it. It is therefore right to establish arrangements for ensuring that people whose marriages break down know which courts have competence to hear their case and to avoid confusion and competition amongst the courts which is a difficulty under existing arrangements. This instrument will supply the necessary element of certainty and, in this way, will be of assistance to couples who may already be experiencing considerable emotional distress.

The Convention aims to ensure that orders in Member States in divorce and similar cases, including orders affecting children made at the time of the divorce, will generally be recognised throughout the European Union with the minimum of procedural requirements. Further, by regulating the competence of divorce courts it should help to avoid the present confusion among courts in the European Union.

The Convention has three main elements:

• It lays down the circumstances in which courts in Member States are to have competence to hear proceedings for divorce, nullity and judicial separation, and proceedings for parental responsibility orders made in the context of matrimonial proceedings (53).
• It lays down rules to regulate the situation where there are concurrent matrimonial proceedings in courts of different Member States involving the same parties, but not necessarily the same type of case, for example where there are divorce proceedings in one country and, at the same time, nullity proceedings in another (54).
• There is provision for the recognition and enforcement throughout the European Union of matrimonial decrees and orders made under the Convention (55). This includes limited grounds for refusal of recognition and enforcement in appropriate cases (56).

In particular, it will be possible to have the civil-status records of a Member State altered without having to initiate proceedings for the enforcement of a judgement delivered in another Member State (58). Implementation of the convention will thus make for more reliable, cheaper (59) and shorter procedures for the recognition and enforcement of judgements in matrimonial matters (60). A protocol to the convention requires each Member State to indicate which courts may request the Court of Justice to give preliminary rulings on the interpretation of the convention.

Finally, it must be said that, according to Article 39, in relations between the Member States, which are parties to it, the Brussels II Convention shall take precedence over the following Conventions in so far as they concern matters governed by the same Convention:

• the Hague Convention of 5 October 1961 concerning the Powers of Authorities and the Law Applicable in respect of the Protection of Minors,
• the Luxembourg Convention of 8 September 1967 on the Recognition of Decisions Relating to the Validity of Marriages,
• the Hague Convention of 1 June 1970 on the Recognition of Divorces and Legal Separations,
• the European Convention of 20 May 1980 on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children,
• the Hague Convention of 19 October 1996 on Jurisdiction, Applicable law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, provided that the child concerned is habitually resident in a Member State.

(44) The text of the Convention is available at the following URL: <http://hcch.net/e/conventions/menu26e.html>; an exhaustive bibliography on this topic can be found at the following URL: <http://hcch.net/e/conventions/bibl26e.html>.

(45) See Article 22 of the 1978 Convention.

(46) The text of the Convention is available at the following URL: <http://hcch.net/e/conventions/menu25e.html>; an exhaustive bibliography on this topic can be found at the following URL: <http://hcch.net/e/conventions/bibl25e.html>.

(47) The spouses may designate only one of the following laws:

• the law of any State of which either spouse is a national at the time of designation;
• the law of the State in which either spouse has his habitual residence at the time of designation;
• the law of the first State where one of the spouses establishes a new habitual residence after marriage.

(48) The spouses may designate only one of the following laws:

• the law of any State of which either spouse is a national at the time of designation;
• the law of the State in which either spouse has his habitual residence at the time of designation.

(49) Nonetheless, if the spouses have neither designated the applicable law nor concluded a marriage contract, the internal law of the State in which they both have their habitual residence shall become applicable, in place of the law previously applicable,

• when that habitual residence is established in that State, if the nationality of that State is their common nationality, or otherwise from the moment they become nationals of that State, or
• when, after the marriage, that habitual residence has endured for a period of not less than ten years, or
• when that habitual residence is established, in cases when the matrimonial property regime was subject to the law of the State of the common nationality solely by virtue of sub-paragraph 3 of the second paragraph of Article 4. (Article 7).

(51) See Council Act of 28 May 1998 drawing up, on basis of Article K 3 of the Treaty on European Union, the Convention on Jurisdiction and the Recognition and Enforcement of Judgements in Matrimonial Matters, Official Journal C 221, 16/07/1998; the text of the Convention is available at the following URL: <http://europa.eu.int/eur-lex/en/lif/dat/1998/en_498Y0716_01.html>; the explanatory report can be found at the following URL: <http://www.europa.eu.int/eur-lex/en/lif/dat/1998/en_498Y0716_03.html>; for the legal doctrine on this act see Giacalone, La cooperazione giudiziaria civile e le attese dei cittadini dell'Unione Europea, in La cooperazione giudiziaria nell'Europa dei cittadini: situazione esistente - prospettive di sviluppo, in Speciale Documenti Giustizia, Roma, 1996, c. 231-236; Kerameus, The Scope of Application of the Brussels Convention and its Extension to Matrimonial Matters, in La cooperazione giudiziaria nell'Europa dei cittadini: situazione esistente - prospettive di sviluppo, in Speciale Documenti Giustizia, Roma, 1996, c. 72-78; Bianchi Bonomo, I lavori dell'Unione europea per la "Convenzione sulla competenza giurisdizionale, il riconoscimento e l'esecuzione delle decisioni in materia matrimoniale", in Documenti Giustizia, 1996, c. 2228-2238; Kennett, The Treaty of Amsterdam; The Brussels 2 Convention, in International and Comparative Law Quarterly, London, Vol. 48, No. 2, April 1999, p. 465-472. For a general overview on judicial co-operation in civil matters before the Amsterdam Treaty see Borrás Rodriguez, The Title VI of the TEU and the Judicial Cooperation in Civli Matters, in La cooperazione giudiziaria nell'Europa dei cittadini: situazione esistente - prospettive di sviluppo, in Speciale Documenti Giustizia, Roma, 1996, c. 7-20.

According to the Maastricht Treaty, Art. K 3 provided that the European Council of Ministers could, on the initiative of any Member State:

1. adopt joint positions and promote any co-operation contributing to the pursuit of the objectives of the EU;
2. adopt joint actions where this was deemed necessary according to the subsidiarity principle;
3. draw up conventions, without prejudice to Art. 220 of the Treaty of Rome (which already provided for "supplementary conventions" in certain matters) recommending that these be adopted by the Member States. Such conventions could stipulate that the Court of Justice should have jurisdiction to interpret their provisions and to rule on any disputes regarding their application.

• "a. First pillar: European Community, which makes use of the legal instruments and procedures set out in the Treaty of Rome.

• b. Second pillar: Common foreign and security policy (CFSP), with the aim of allowing the EU to assert its identity on the international scene (.).

• c. Third pillar: Justice and home affairs (JHA) (.).

The Treaty of Amsterdam-which was signed on 2 October 1997 and entered into force on 1 May 1999-has moved, among other things, the topic of cooperation in civil matters from the intergovernmental "Third Pillar" to the new title "Free Movements of Persons, Asylum and Immigration." This title-in which communitary instruments, methods of decision-making and legislation will apply-should enter into force within five years of the ratification of the new Treaty. The communitarisation of immigration, asylum, external borders and legal cooperation in civil matters enhances the role of the institutions more generally. The European Parliament has to be consulted prior to the taking of initiatives. The role of the Court of Justice is expanded: if there is non remedy under national law, the Court may be requested to give a ruling, but it can only be asked to do so by the highest judicial authorities in the member States. Its position is strengthened as the commission is enabled to question certain practices.

(52) See the European Communities Convention on Jurisdiction and Enforcement of Judgements in Civil and Commercial Matters (EEC Judgements Convention, Brussels, 27 September 1968); the text of the Convention is available at the following URL: <http://users.javanet.com/~tradelaw/brussels.html>.

(53) See Article 2, according to which "In matters relating to divorce, legal separation or marriage annulment, jurisdiction shall lie with the courts of the Member State:

(a) in whose territory:

• the spouses are habitually resident, or
• the spouses were last habitually resident, in so far as one of them still resides there, or
• the respondent is habitually resident, or
• in the event of a joint application,
• either of the spouses is habitually resident, or
• the applicant is habitually resident if he or she resided there for at least a year immediately before the application was made, or
• the applicant is habitually resident if he or she resided there for at least six months immediately before the application was made and is either a national of the Member State in question or is 'domiciled' there;

According to Article 3 "The Courts of a Member State exercising jurisdiction by virtue of Article 2 on an application for divorce, legal separation or marriage annulment shall have jurisdiction in a matter relating to parental responsibility over a child of both spouses where the child is habitually resident in that Member State.

Where the child is not habitually resident in the Member State referred to in paragraph 1, the courts of that State shall have jurisdiction in such a matter if the child is habitually resident in one of the Member States and

• (a) at least one of the spouses has parental responsibility in relation to the child and,

• (b) the jurisdiction of the courts has been accepted by the spouses and is in the best interests of the child.

• (a) the judgement allowing or refusing the application for divorce, legal separation or marriage annulment has become final, or

• (b) in those cases where proceedings in relation to parental responsibility are still pending on the date referred to in (a), a judgement in these proceedings has become final, or

• (c) the proceedings referred to in (a) and (b) have come to an end for another reason."

(54) According to Article 11 "Where proceedings involving the same cause of action and between the same parties are brought before courts of different Member States, the court second seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established.

Where proceedings for divorce, legal separation or marriage annulment not involving the same cause of action and between the same parties are brought before courts of different Member States, the court second seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established.

Where the jurisdiction of the court first seized is established, the court second seized shall decline jurisdiction in favour of that court.

In that case, the party who brought the relevant action before the court second seized may bring that action before the court first seized."

Article 12 sets forth the principle according to which "In urgent cases, the provisions of this Convention shall not prevent the courts of a Member State from taking such provisional, including protective, measures in respect of persons or assets in that State as may be available under the law of that Member State, even if, under this Convention, the court of another Member State has jurisdiction as to the substance of the matter."

(55) According to Article 14 "A judgement given in a Member State shall be recognised in the other Member States without any special procedure being required.

In particular, and without prejudice to paragraph 3, no special procedure shall be required for up-dating the civil-status records of a Member State on the basis of a judgement relating to divorce, legal separation or marriage annulment given in another Member State, and against which no further appeal lies under the law of that Member State.

Any interested party may, in accordance with the procedures provided for in Sections 2 and 3 of this Title, apply for a decision that the judgement be or not be recognised.

Where the recognition of a judgement is raised as an incidental question in a court of a Member State, that court may determine that issue."

(56) Among these grounds (provided for by Article 15) the following ones can be mentioned:

• if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought;
• if it is irreconcilable with a judgement given in proceedings between the same parties in the Member State in which recognition is sought;
• if it is irreconcilable with an earlier judgement given in another Member State or in a non-Member State between the same parties, provided that the earlier judgement fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.

• if such recognition is manifestly contrary to the public policy of the Member State in which recognition is sought taking into account the best interests of the child;
• if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the Member State in which recognition is sought;
• if it is irreconcilable with a later judgement relating to parental responsibility given in the Member State in which recognition is sought; or
• if it is irreconcilable with a later judgement relating to parental responsibility given in another Member State or in the non-Member State of the habitual residence of the child provided that the later judgement fulfils the conditions necessary for its recognition in the Member State in which recognition is sought.

(58) See Article 14, paragraph 2, according to which "no special procedure shall be required for up-dating the civil-status records of a Member State on the basis of a judgement relating to divorce, legal separation or marriage annulment given in another Member State, and against which no further appeal lies under the law of that Member State."

(59) See e.g. Article 31, according to which "An applicant who, in the Member State of origin, has benefited from complete or partial legal aid or exemption from costs or expenses shall be entitled, in the procedures provided for in Articles 21 to 24, to benefit from the most favourable legal aid or the most extensive exemption from costs and expenses provided for by the law of the Member State addressed."

(60) Articles 22 - 32 set forth such procedures.