IT IS not just trade that crosses European Union borders — families do, too. Where you live and which country’s laws apply to you can make a big difference to your legal position. Next Monday an EU regulation will change family law not only here but also across the EU. Denmark is the only country that has chosen to opt out.

The change will be good news for unmarried couples such as Karl and Carol, who live in Britain. They were delighted when their son was born in January last year, but shocked by the English law under which Karl was not automatically recognised as the father. For example, if the boy fell ill and needed medical treatment Karl might not be able to sign a consent form. As Carol sometimes had to be away for work this was worrying, but was easily remedied once Karl was named as the father when they registered the birth.

It was more worrying when they wanted to make sure that Karl was not similarly disadvantaged in his native Denmark, or in Germany, where they have relatives. In both countries the process was difficult because they are not married. So bad in fact, that when their daughter was born they considered getting married just to cut through Danish and German red tape.

Karl and Carol discovered that you do not have to be divorcing or separating to find that differences in family law across the EU can cause problems. When married couples divorce, such issues become particularly acute. Immediate questions such as where any children should live, and payment of child maintenance, become even more complex if one parent wishes to take the children to live in another country.

In circumstances such as these families can get caught between two or more competing legal systems and there can be significant differences in the outcomes. Under French law for instance, divorced parents can be expected to pay for their children until they have a full-time job, even if that takes until they reach 25. Under English law the buck usually stops when children turn 18, or finish full-time education.

For married couples the legal system that decides financial and children issues is dictated by where the divorce is started. This encourages some parents to rush to start a divorce in the country of their choice in the hope of securing a favourable legal outcome. This sort of “divorce race” does little to promote a civilised separation process or to protect children.

The EU has been trying to simplify family law since 2000. In March 2001 an EU regulation known as Brussels II, which affected family law across the EU except in Denmark, was introduced. The revised version of Brussels II, imaginatively known as Brussels IIA, is coming into force on March 1. The three main changes that it brings to English family law relate to arrangements for children.

First, it will end the “divorce race” for married couples with children. Instead, most decisions about children will be made according to the law of the EU country in which the child lives, regardless of where divorce proceedings are started. So all children will be treated the same regardless of whether their parents married.

Secondly, it will be easier for court decisions reached in one EU country to be recognised and enforced in another. More widely, for the first time other EU countries may recognise private agreements either between parents or between parents and social services. So it should be easier for couples such as Karl and Carol to ensure that fathers are legally recognised elsewhere in the EU, although Denmark may still be a challenge.

Thirdly, there are procedural changes to the way that courts resolve cases where children are abducted by one parent and taken to another EU country.

So is this the first step towards a single EU family law? Some countries, including Britain, are considering ratifying the European Convention on Contact Concerning Children, and last year the Commission of European Family Law (a group of leading academics from across the EU) put forward principles for a common family law for divorce, maintenance and some issues relating to children. But there are no firm plans for these proposals to become law.

Although there has been talk of a Brussels III, bringing in a unified family law for financial issues, there are still important differences throughout the EU. This is particularly the case when it comes to property law, making it difficult to achieve a unified law in the short term. If this is the first step towards a single family law across the EU, we are on the first rung of a very long ladder, but at least we are off the ground.

The author is a specialist family and collaborative lawyer at the London firm Cumberland Ellis Peirs

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