On March 19th, 2021, IAFL Introduction to European Family Law 'Virtual Kyiv' Webinar took place. The event examined issues in relation to European Family Law via the legislative and court practice patterns of the Czech Republic, England, France, Germany, Italy, Malta, Monaco, Scotland, Switzerland and Ukraine.
As a IAFL Member and a leading practitioner in the field of Family Law and Private Clients Oksana Voynarovska was delighted to chair the third session of the Webinar “Maintenance: current thinking, and where is it going?”.
Here are some current trends and insights in four key directions of European Family Law.
Digital information and social media:
Parental rights and responsibility in controlling the digital communication of children: nowadays European countries most notably respect the privacy of a child. Parents can monitor only public profiles of the children particularly in Facebook, Instagram or TikTok. However, in no way such control may be extended to child`s private emails, WhatsApp or Facebook messengers unless the protection of minors’ well-being so directly requires.
Extended admissibility of evidence obtained from social media: European courts tend to allow the parties to family law disputes to submit social media evidence if it is publicly accessible. Such evidence is used to indicate an opponent`s behavior, adultery, state of mind, lifestyle, employment, or income.
Ethic rules and the use of social media and digital information in lawyer`s day-to-day practice and client acquisition: lawyers should follow ethic rules, privacy and confidentiality requirements both in communication and subsequent storage of information, principles of integrity, disinterest and impeccable reputation in global cyberspace too. Herewith, social media is a powerful tool to enlarge a client pool.
How decisions are made: (1) Voice of the child and (2) Transparency of judicial decision-making
More active children`s engagement in family law proceedings for better protection of their interests: it is time to broadly recognize children’s rights to be involved in proceedings affecting their interests (such as divorce, adoption, custody, other issues of parental authority) and to express their opinions. Though a child’s opinion is not binding for judges, it is crucial in assessing the best interests of the child.
Diversification of ways of being heard: the right to be heard does not imperatively stand for the child’s attendance of a courtroom. In most countries, children can express their opinion during meetings with social services officials or psychologists, as well as within a private conversation with a judge. Such a tête-à-tête hearing without any assistance is an emerging trend.
Case-by-case basis assessment of “the child’s discernment”: it is up to a judge to decide children’s capacity to express their opinions within legal disputes. Child’s age, education level, mental health and capacity to produce independent arguments are usually used as criteria. In recent practice, even children under 10 can exercise the right to be heard by the court.
An emerging trend of being represented by a child’s advocate: usually, parents act as representatives of their children in court proceedings. However, under recent European practice, a child may be heard via a counsel who impartially and objectively represents the child`s interests before the court. Such a concept is subject to heated discussion.
Maintenance: current thinking, and where is it going?
An essential parental responsibility for child maintenance: parents are obliged to maintain their children and this duty does not terminate after their divorce. Often European countries fail to fix the maximum and minimum of alimony payments. Competent bodies may define the amount of child support on a case-by-case basis under assessment of children’s needs to guarantee them the decent standard of life. Another trend is toamicably settle child alimony issues in a contract between the parents.
Trend of ever-increasing protection of one of the spouses` right for financial support both in marriage and after the divorce, that is crucial when the spouse devoted himself/herself to the keeping of household and thus lacks financial or professional resources for autonomy: spousal maintenance is a step to “recover”. Nowadays, spousal maintenance is loosing its gender patterns: men seek for alimony as women do. Also, some countries grant the right to maintenance to civil partners or even cohabitants.
Divorce and financial splits: an essential outline
The perspectives and enhanced use of marriage contracts intended for choosing the applicable law, jurisdiction for divorce and/or matrimonial property regime: the best way to govern financial and non-financial relations of the spouses is contractual. Thus, the number and complexity of pre-nuptial and post-nuptial agreements intended to choose the applicable law, jurisdiction for divorce and/or matrimonial property regime steadily goes up. It is highly crucial when it comes to mixed couples residing or owing assets in two or more jurisdictions.
Increasing need of protection of a weaker party and equitable distribution of finances in divorce cases: European court practice is deviating from a strict 50/50 rule while splitting the marital assets. Courts have discretion to divide spouses’ property on the basis of needs of each of the spouses, their financial or labor contributions in order to protect the interests of both parties and especially the weaker one.