The he also stated that different understanding

The legal ground for judicial cooperation in the civil matter with cross-border element was introduced by the Treaty of Amsterdam in 1999.1 In same year one of the most significant contributions by MS within Union was to agree upon Mutual recognition to become a concernstone of judicial cooperation in the criminal and civil matter.2 In 2010-2014 during Stockholm program MS decide that MR should be extended and cover important areas of life by taking in account different MS’s legal systems, policies, traditions and etc.3

The Brussels I 4and Brussels II bis Regulations5 function in cross-border civil matters.6 Brussels II has been recognized as the start of ‘Europeanization’ of family issues.7 There was a long debate if homosexual couples are covered by Brussels II bis regulation. According Martiny in the period of drafting the regulation homosexual marriages was not common for EU domestic law. He argues that only Systematic and teleological argument can be an answer – why the homosexual couple should be covered by this regulation.8 Patrick Wauletet argues that ”there is no room for application of the Brussels 2 bis regulation when the court is seized of a petition concerning same-sex marriages”, he also stated that different understanding of regulation will be in conflict with European principle of uniform interpretation.9

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One of the most important issues is to define the meaning of Marriage. According to article 13 of Rome regulation ‘marriage” should be defined autonomously and could include homosexual marriages otherwise, if it will be depended on each states domestic law and its interpretations, article 13 will lose its meaning and importance.10 The term ‘marriage’ and ‘spouses’ should be compatible with the definition given by EU regulations on a Private international law.11 Problems regarding ”marriage” definition is present in Annex 1 of Brussels II regulation, where ‘marriage” explicitly is related with the concept of ‘husband’ and ‘wife’.12 It’s obvious that in cases of divorce if unions are formed by same-sex spouses’ court will not have competence over a case. It’s possible to turn on article 13 of Rome III regulations but it takes place in exceptional circumstances.13

To continue in this vein, definition of the ‘marriage’ may occur problematic in cases of divorce; to make it clear, it means if the applicable law for divorce defines marriage differently than the domestic law of the forum or any other ‘applicable law’ which in fact is determined by forums conflict of rules, it means parties of marriage are limited to indicate the law applicable for their legal separation. This ‘indirect’ limitation is given by the Rome III regulation. Forum country of divorce might not grant a divorce if according to its national rules, a spouse is not considering as being married. Rome III gives international couples possibility to marry abroad, but if the forum considers some marriages as being not legal for purposes of divorce even if this marriage is seen as legal by a foreign state, the fact is that the autonomy of the couple to reflect on their family relationship is not possible. So, its lead us to the conclusion that the given right to a spouse to choose applicable law for their legal separation is meaningless.14

One another important issue to be addressed is related to Rome III regulation, which refers to the member states’ conflict of rules instead of their domestic rules. This is so because the recital 10 from same regulation ’empowers’ states conflict of rules to be taken into account ones it comes to the validity of a marriage. Looking into a depth of article 13 it’s obvious that the aim to achieve is the uniformity of decision between the member states in question and not among courts of different MS. If the notion of ‘marriage’ is related to the conflict rules of lex fori, the marriage will be always considered as invalid in cases of divorce or other disputes arose from the context of marriage validity. Above mention, problems will not be present to such extent if foreign state’s conflict of rules is in conformity with forums own conflict of rules.15

1 A guide for legal practitioners in the European Union on Judicial cooperation in civil matters, European Judicial Network in civil and commercial matters ,European Union, 2014, pg.5-6

2Judicial cooperation in civil matters, visit: http://eur-lex.europa.eu/summary/glossary/judicial_cooperation_civil_matters.html

3 The Stockholm Programme, visit: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM:jl0034

4 Noted: Dealing with jurisdiction of courts and the recognition and enforcement of judgments in civil and commercial matters in MS, Regulation (EU) No 1215/2012 Of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast), Official Journal of the European Union

5 Noted: Deals with divorce, legal separation and the annulment of marriage and parental responsibility, Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, Official Journal of the European Union

6 Visit: https://www.cambridge.org/core/journals/international-and-comparative-law-quarterly/article/ten-years-of-european-family-law-retrospective-reflections-from-a-common-law-perspective/86CDF496DE4319C4553E2A1F1226D452

7 K. Boele, A. Fuchs el., ”Legal Recognition of same-sex relationships in Europe- national and European cross-border perspectives”, fully revised second edition, published by organizing Committee of the Commission on European Family law, Intersentia Publishing LTD, D. Martini, Workshop: Cross-Border Recognition (and refusal of recognition) of registered partnerships and marriages, pg.236

8 K. Boele, A. Fuchs el., ”Legal Recognition of same-sex relationships in Europe- national and European cross-border perspectives”, fully revised second edition, published by organizing Committee of the Commission on European Family law, Intersentia Publishing LTD, D. Martini, Workshop: Cross-Border Recognition (and refusal of recognition) of registered partnerships and marriages, pg.236

9 Ibid, pg.159

10 M. Torga, ”Party autonomy of the spouses under the Rome III Regulation in Estonia – can private international law change substantive law? ”, Lecturer of Civil Law, University of Tartu, Estonia, pg. 547

11 Ibid, pg.549

12 Council Regulation (EC) 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and matters of parental responsibility, repealing Regulation (EC) 1347/2000, OJ 2003 L 338/1.

13 M. Torga, ”Party autonomy of the spouses under the Rome III Regulation in Estonia – can private international law change substantive law?, pg.549 note: Such exceptions cover situation where the jurisdiction was determined under the ‘residual rules’ or where the validity issue of divorce arose outside divorce proceedings as a preliminary issue

14 M. Bogdan, ”Registered Partnerships and EC Law”, in: K. Boele-Woelki and A. Fuchs (eds.), Legal Recognition of Same-Sex Couples in Europe, Antwerp: Intersentia 2003, pg176-177

15 Ibid, 549