Determining the Applicable Law on Family Matter

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Table of Contents

Introduction
Nationality as an opportunity to equalize persons with each other
Application of Nationality
Family Law: Why the Choice of Applicable Law Involves Several Connecting Factors
Conclusion
References
Footnotes

Introduction

The regulation of relations in family law is based on the choice of applicable law to such categories as marriage, divorce, parental responsibility, etc. It is essential to pay attention to the issues of the option of connecting factors for the applicable law. Nationality as a category of human rights acts not only as a primary basis for choice. Still, it is essential to regulate family matters without prejudice and with equal opportunities for spouses. Although there are advantages to applying domicile or habitual residence, citizenship is characterized by a clear functional option about the right.

Nationality as an opportunity to equalize persons with each other

Nationality emerged as a legal bond between the individual and the state to express their common rights, duties, and responsibilities. Nationality makes it possible to regulate issues that arise in conflicts in labor, administrative, civil, and other rights¹. In addition, the acquisition of citizenship is tied to many factors (for example, inheritance, by blood, by place of birth), so the regulation of citizenship issues are relevant in many branches of law.

Nationality provides opportunities to participate in the regulation of law. For example, the ability to elect and be elected, participate in referenda and voting, and other additional rights arise when a person acquires citizenship. In addition, citizenship attaches duties, the observance or non-observance of which leads to inevitable consequences. In such a case, civil liability arises, governed by civil law, choosing the applicable law on a case-by-case basis.

Nationality is a unifying category for all persons residing in the same territory and having grounds to acquire the citizenship of the place of residence. Citizenship is also achieved through marriage, the birth or adoption of a child² (e.g., in the United States), and there are also legal ways to acquire citizenship through involvement in the economy and stock market of the country. Thus, this category grants a person certain rights about activities in the states territory and gives opportunities for implementation by the current legislation.

Application of Nationality

Among the branches of law, there is a particular focus on property law about the countrys citizens. In many cases, the consumption of the benefits of a country or the acquisition of property on its territory is not a basis for acquiring citizenship. Nevertheless, the division of property and its inheritance are regulated by international agreements and regulations of the persons country. The EU regulation N1103/2010 governs the substantive relationship at the conclusion or dissolution of a marriage by reference to conflict of laws rules to determine the law applicable to all marital property³. This issue is usually resolved by applying a scale of cumulative connecting factors, including nationality.

In family law, nationality appears in court cases arising from the birth of a child after the dissolution of marriage and parental responsibility and child support. In addition, nationality is a linking factor in the regulation of international divorce. According to Regulation N2201/2003, the same principle applies here as in the case of division of property⁴. Thus, nationality is a connecting factor in determining the choice of law objectives about persons.

Family Law: Why the Choice of Applicable Law Involves Several Connecting Factors

Nationality becomes at the head of the regulation of family law issues because it allows conflicts to be resolved without additional judicial proceedings. In addition, the principle of choosing the applicable law based on citizenship dramatically simplifies the procedure for dealing with issues. Unlike domicile, citizenship is not usually tied to the subordination of married women and the abuse of marriage to determine the residence of the spouses. The regulation of multiple citizenship cases is greatly simplified because of the detailed clauses in the international agreements of member countries. In this way, citizenship acquires certain advantages in the regulation of family law.

Domicile and Habitual Residence: Why are They Obsolete in Todays World?

Domicile is a connecting factor that plays a predominant role in the law of common law countries. The preservation of the general principle of domicile brings resonance to society, especially given the improvement of gender discrimination issues. Uniformity of residence is an artificial category, so the use of the principle of domestication is contrary to international agreements respecting human rights⁵. Nevertheless, Ireland and England continue to use domicile, relying on its advantages in matters of statelessness.

Habitual residence is a relatively new category of person. The main advantage is eliminating discrimination in matters of marriage and reducing spousal guilt in divorce laws. In addition, habitual residence is used as a conflict of laws binder. Nevertheless, the difficulties in defining and intentionally withholding information make a habitual residence a rather tricky factor for the law to apply.

Conclusion

Thus, among the advantages of using citizenship as a connecting factor in determining the applicable law in family matters is its role in simplifying the proceedings. In addition, an obvious benefit is the use of citizenship to resolve issues of parental responsibility and property division. Unlike domicile and habitual residence, citizenship is less discriminatory to married women and draws attention to the equal rights of spouses. Citizenship makes it possible to resolve complex issues and regulate legal relations in family matters without prejudice and with the same opportunities for the persons against whom the applicable law is chosen.

References

Basedow, J. (2017). Encyclopedia of private international law (1^st ed.). Edward Elgar Publishing Limited.

European Union. (2003). Regulation (EC) No 2201/2003 jurisdiction, recognition and enforcement of matrimonial and parental judgments. Web.

European Union. (2010). Commission regulation (EU) No 1103/2010 of 29 November 2010 establishing, pursuant to Directive 2006/66/EC of the European Parliament and of the Council, rules as regards capacity labelling of portable secondary (rechargeable) and automotive batteries and accumulators. Web.

Hill, J. (2016). Domicile, nationality, and habitual residence, in Clarkson & Hills conflict of laws (pp. 315-352). Oxford University Press.

Zhang, M. (2018). Habitual residence v. domicile: a challenge facing American conflicts of laws. Maine Law Review, 70(2), pp. 162-197.

Footnotes

Basedow, 2017.
Hill, 2016.
European Union (EU), 2010.
EU, 2003.
Zhang, 2018.

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