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{"id":62823,"date":"2022-07-22T15:34:31","date_gmt":"2022-07-22T15:34:31","guid":{"rendered":"https:\/\/kellumphysicianpartners.com\/?p=62823"},"modified":"2022-07-22T15:37:22","modified_gmt":"2022-07-22T15:37:22","slug":"i-do-not-agree-with-their-analysis-3","status":"publish","type":"post","link":"https:\/\/kellumphysicianpartners.com\/2022\/07\/i-do-not-agree-with-their-analysis-3\/","title":{"rendered":"I do not agree with their analysis"},"content":{"rendered":"

I do not agree with their analysis<\/title><\/p>\n<p>By its first question, the referring court asks the Court, in essence, to rule on whether divorces in which no decision creating or altering rights has been issued by a public authority – be it a court or other organ of the State – fall within the substantive scope of Regulation No .<\/p>\n<p>To my mind, however, there is a genuine interest in having the Court give an answer to the question raised, inasmuch as this will ensure, in accordance with the case-law cited above, ( 58 ) that the concept of \u2018divorce’ within the meaning of Regulation No is uniquely interpreted and, therefore, uniformly applied in the legal orders of all of the participating Member States. In this instance, if the Court answers that question in the negative, as I shall recommend, the German authorities will, in particular, be compelled to adapt the rules of national law accordingly, as the German Government acknowledged at the hearing.<!--more--><\/p>\n<h2>In their observations, Mr Mamisch and the German and French Governments consider that private divorces must be governed by the provisions of Regulation No , at the very least in circumstances such as those of the case in the main proceedings<\/h2>\n<p>The issue of whether such private dissolutions are covered by that regulation is raised, in the present case, in relation to an Islam-based – Syrian – legal system which allows the bonds of marriage to be dissolved by an act of intent drawn up by the husband which is then simply registered or made the subject of a purely declaratory decision issued by a religious authority. That issue arises more generally, however, in relation to divorces of all existing types which are obtained without the participation of a public authority acting in a capacity involving the creation or alteration of rights, whether they arise from a manifestation of unilateral or joint intent by the parties.<\/p>\n<p>( 59 ) The Belgian, Hungarian and Portuguese Governments and the Commission <a href=\"https:\/\/hookupdate.net\/es\/boneamilf-review\/\">BoneAMilf <\/a>, on the other hand, take the contrary view, which I share, for the following reasons.<\/p>\n<p>First of all, it is apparent that the wording of the provisions of Regulation No , in particular Article 1, which relates to the scope of that instrument, does not provide any information that might be of use in answering the question referred for a preliminary ruling, since it does not in any way define the concept of \u2018divorce’.<\/p>\n<p>According to the Court’s settled case-law, it follows from the need for a uniform application of EU law that, where an EU act makes no reference to the law of the Member States for the purposes of defining a particular concept, as is the case here, that concept must be given an independent interpretation to be adopted by the Court in the light of the general scheme, objectives and genesis of the regulation in question. ( 60 )<\/p>\n<p>As regards the general scheme of Regulation No , Mr Mamisch and the German Government claim that the exclusion of private divorces from its substantive scope does not follow from a schematic overview of all of the provisions of that regulation.<\/p>\n<h2>It might therefore be opined that the view sought from the Court with respect to the scope of that regulation is not necessary to the resolution of this dispute, since German law requires such proceedings to be governed by that regulation in any event<\/h2>\n<p>It is true that private divorces are not explicitly excluded from the regulation’s substantive scope, unlike dissolution of the bond of marriage in the form of annulment. ( 61 ) However, many of the provisions of Regulation No put a \u2018court’, as loosely defined in Article 3(2), ( 62 ) and the existence of a \u2018proceeding’ at the centre of the process of dissolving or loosening a marriage bond. ( 63 ) In my view, this would indicate that the EU legislature intended \u2018divorces’ within the meaning of that regulation to be covered only in the context of decisions issued by competent public authorities. ( 64 )<\/p>\n","protected":false},"excerpt":{"rendered":"<p>I do not agree with their analysis<\/p>\n<p>By its first question, the referring court asks the Court, in essence, to rule on whether divorces in which no decision creating or altering rights has been issued by a public authority – be it a court or other organ of the State – fall within the substantive scope of Regulation No .<\/p>\n<p>To my mind, however, there is a genuine interest in having the Court give an answer to the question raised,<\/p>\n<p><a href=\"https:\/\/kellumphysicianpartners.com\/2022\/07\/i-do-not-agree-with-their-analysis-3\/\" class=\"more-link\" title=\"Read I do not agree with their analysis\">Read More »<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[18047],"tags":[],"class_list":["post-62823","post","type-post","status-publish","format-standard","hentry","category-boneamilf-reviews-2"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v19.4 - https:\/\/yoast.com\/wordpress\/plugins\/seo\/ -->\n<title>I do not agree with their analysis - Kellum Physician Partners<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/kellumphysicianpartners.com\/2022\/07\/i-do-not-agree-with-their-analysis-3\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"I do not agree with their analysis - Kellum Physician Partners\" \/>\n<meta property=\"og:description\" content=\"I do not agree with their analysis By its first question, the referring court asks the Court, in essence, to rule on whether divorces in which no decision creating or altering rights has been issued by a public authority – be it a court or other organ of the State – fall within the substantive scope of Regulation No . To my mind, however, there is a genuine interest in having the Court give an answer to the question raised,Read More »\" \/>\n<meta property=\"og:url\" content=\"https:\/\/kellumphysicianpartners.com\/2022\/07\/i-do-not-agree-with-their-analysis-3\/\" \/>\n<meta property=\"og:site_name\" content=\"Kellum Physician Partners\" \/>\n<meta property=\"article:published_time\" content=\"2022-07-22T15:34:31+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2022-07-22T15:37:22+00:00\" \/>\n<meta name=\"author\" content=\"kellum\" \/>\n<meta name=\"twitter:card\" content=\"summary\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"kellum\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"3 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"WebSite\",\"@id\":\"https:\/\/kellumphysicianpartners.com\/#website\",\"url\":\"https:\/\/kellumphysicianpartners.com\/\",\"name\":\"Kellum Physician Partners\",\"description\":\"\",\"potentialAction\":[{\"@type\":\"SearchAction\",\"target\":{\"@type\":\"EntryPoint\",\"urlTemplate\":\"https:\/\/kellumphysicianpartners.com\/?s={search_term_string}\"},\"query-input\":\"required name=search_term_string\"}],\"inLanguage\":\"en-US\"},{\"@type\":\"WebPage\",\"@id\":\"https:\/\/kellumphysicianpartners.com\/2022\/07\/i-do-not-agree-with-their-analysis-3\/\",\"url\":\"https:\/\/kellumphysicianpartners.com\/2022\/07\/i-do-not-agree-with-their-analysis-3\/\",\"name\":\"I do not agree with their analysis - Kellum Physician Partners\",\"isPartOf\":{\"@id\":\"https:\/\/kellumphysicianpartners.com\/#website\"},\"datePublished\":\"2022-07-22T15:34:31+00:00\",\"dateModified\":\"2022-07-22T15:37:22+00:00\",\"author\":{\"@id\":\"https:\/\/kellumphysicianpartners.com\/#\/schema\/person\/c2cac49f887cce9462fdf9e53a2395bf\"},\"breadcrumb\":{\"@id\":\"https:\/\/kellumphysicianpartners.com\/2022\/07\/i-do-not-agree-with-their-analysis-3\/#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\/\/kellumphysicianpartners.com\/2022\/07\/i-do-not-agree-with-their-analysis-3\/\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\/\/kellumphysicianpartners.com\/2022\/07\/i-do-not-agree-with-their-analysis-3\/#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\/\/kellumphysicianpartners.com\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"I do not agree with their analysis\"}]},{\"@type\":\"Person\",\"@id\":\"https:\/\/kellumphysicianpartners.com\/#\/schema\/person\/c2cac49f887cce9462fdf9e53a2395bf\",\"name\":\"kellum\",\"image\":{\"@type\":\"ImageObject\",\"inLanguage\":\"en-US\",\"@id\":\"https:\/\/kellumphysicianpartners.com\/#\/schema\/person\/image\/\",\"url\":\"https:\/\/secure.gravatar.com\/avatar\/7a2f1526de045c827ee8c170dcb95c5c?s=96&d=mm&r=g\",\"contentUrl\":\"https:\/\/secure.gravatar.com\/avatar\/7a2f1526de045c827ee8c170dcb95c5c?s=96&d=mm&r=g\",\"caption\":\"kellum\"},\"url\":\"https:\/\/kellumphysicianpartners.com\/author\/kellum\/\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"I do not agree with their analysis - Kellum Physician Partners","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/kellumphysicianpartners.com\/2022\/07\/i-do-not-agree-with-their-analysis-3\/","og_locale":"en_US","og_type":"article","og_title":"I do not agree with their analysis - Kellum Physician Partners","og_description":"I do not agree with their analysis By its first question, the referring court asks the Court, in essence, to rule on whether divorces in which no decision creating or altering rights has been issued by a public authority – be it a court or other organ of the State – fall within the substantive scope of Regulation No . 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