Overview of the current situation in the ENPI South region and comparative review of national experiences in the field of resolution of cross-border family conflicts. (Research Report 2)
It is the first time that a Research Report offers an overview of the current situation in the ENPI South region as well as a comparative review of national experiences in the field of resolution of cross-border family conflicts. The background model of reference is that of The Hague conventions and the Malta process. Not because of hegemonic reasons, but rather because it provides a standard to test various definitions and regulations.
The breadth of the research questions and the variety of responses given to such questions in the various jurisdictions of the ENPI South region are truly remarkable. Not only had an assessment of such variations never been attempted on the regional level, but it is also rarely available domestically in the jurisdictions with multiple court systems and/or multiple applicable laws. The teams of respondents often had to go to great lengths beyond the available data to provide the detailed responses compiled in this report.
Cross-border family conflicts, however, feed and strive exactly on such a multiplicity of responses, as litigants try to profit from differing legal systems and the diversity of regulations therein. Litigants tend to select a court that will apply a law possibly offering a more convenient solution, or that will pass a more favourable judgment.
The instinctive forum-shopping is fuelled by a general mistrust between jurisdictions: a general mistrust often based on a lack of knowledge of the system of jurisdictions and applicable laws that can interact in a cross-border family conflict. Such general mistrust can be dispelled—or confirmed—by more in-depth knowledge, which is the main purpose of the report.
The report attempts to offer a detailed overview of the jurisdictions and regulations of family law matters in the ENPI South region when a foreign (namely: European) element is involved. Such a detailed overview will provide aid in identifying the ways in which to approach cross-border family conflicts, possibly defuse them and avoid the traditional recourse to diplomatic intervention.
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The report opens with a survey on the distribution of competencies between religious and civil jurisdictions, in particular when a foreign element is involved—and the degree of relevance such an element of foreignness brings forth. In doing so, the report also considers the way in which cross-border family cases are allocated to and decided by the different institutions and organs in practice. (Section A)
Beyond the conventional system of jurisdictions, the report identifies the existence and operation of other dispute resolution bodies in the ENPI South countries (both generally and in the field of family conflict resolution in particular). (Section B)
The report then addresses, in detail, individual areas of family conflicts to identify the key issues - problems of definition or formal classification, give an overview of the current situation in the ENPI South region, and to establish the occurrence of regular clashes on specific points with the jurisdictions of selected EU MS. (Sections C-G)
Whereas a comparative review of national experiences in the field of resolution of cross-border family conflicts emerges throughout the report, the latter’s last section looks in particular at specialised bodies that operate within individual jurisdictions. (Section H)
Drawing on the experience of the questionnaire and the technical visits, the report closes with a few comparative remarks on the areas that deserve further attention and those in which EU action can readily focus. (Closing Remarks)