European Papers (May 2023)
Reshaping the Boundaries Between ‘Decision’ and Party Autonomy. The CJEU on the Extrajudicial Italian Divorce
Abstract
(Series Information) European Papers - A Journal on Law and Integration, 2023 8(1), 43-53 | European Forum Insight of 5 May 2023 | (Table of Contents) This contribution focuses on the definition of “decision” in divorce matters for the purpose of Brussels IIa and IIb Regulations. Shaping the concepts of “decision” and “court” in EU family matters has become controversial since when extrajudicial divorces have spread around Europe since the early 21st century. In 2022 the CJEU, in dealing with a divorce agreement drawn up by the Italian civil registrar and confirmed by the spouses before that registrar in accordance with the conditions laid down by the national legislation, came to the conclusion that it constitutes a “decision”. This contribution critically examines the Senatsverwaltungs judgment of the Court of Justice of the European Union by exploring the arguments it uses, the conclusion it reaches and the implications it carries. In particular, it analyses the “examination of the substance of the agreement” as criterion to feature the concept of “decision” by comparing it with the CJEU’s precedents and argues that, if properly under-stood, this should lead to deny the divorce agreement drawn up by the Italian civil registrar to be a decision. Finally, it makes a plea for an alternative view of the boundaries of “decision” and “authentic instrument and agreement” in cases falling under the sphere of application of Brussels IIb regulation. | (Abstract) I. Senatsverwaltung as a step forward in the definition of decision in divorce matters after Sahyouni. - II. The reasoning of the CJEU and its doubtful application to the Italian divorce in front of the mayor. - III. The wide definition of ‘decision’ and its implications for Brussels IIa and Brussels IIb regulations. - IV. The examination of the substance of the agreement in context and the need for different concepts of ‘decision’ in Brussels IIa and Brussels IIb regulations. - V. A plea for an alternative view of the boundaries of ‘decision’ and ‘authentic instrument and agreement’.
Keywords
