Divorcing international couples will soon be able to choose which EU country's law governs their divorce, under new EU rules unanimously approved by the Legal Affairs Committee on Thursday. For example, the new rules would allow a Franco-German couple living in Belgium to agree whether French, German or Belgian law applies to their divorce.
The new rules are to be approved by EU justice ministers on Friday and by Parliament as a whole in December, in Strasbourg. They are being agreed via a new procedure for "enhanced co-operation" among EU Member States, in which 14 Member States are so far taking part. This is the first use of this procedure in the history of the EU.
The new EU regulation on divorce and legal separation will allow international couples (i.e. couples of different nationalities, couples living apart in different EU countries or living together in a country other than their home country) to choose which law applies if they are to separate, so long as it is the law of a country to which they have a close connection (such as habitual residence or nationality). The new rules also clarify which law is to apply should the spouses fail to agree on a choice.
The text aims to provide clear and comprehensive rules for the 14 participating Member States: Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia. Other EU Member States may join at any time. These rules would take effect 18 months after they are approved by the Member States.
Preventing a "rush to court"
The new rules should provide greater certainty as to the law, predictability and flexibility, and prevent a "rush to court", in which one spouse applies for divorce before the other so as to ensure that the proceedings are governed by a given law which he/she considers more favourable to his/her own interests.
"The new rules aim to prevent the so-called 'rush to the court' and to protect the spouse placed in a weaker position as a result of this practice. However, a Member State cannot be required to recognise as marriage, even for the sole purpose of its dissolution, an act that is not considered to be such by the law of that State", underlined Legal Affairs Committee rapporteur Tadeusz Zwiefka (EPP, PL).
"In the same way, it would be contrary to the principle of subsidiarity to impose on a judge in a Member State whose law does not provide for such an act, a requirement to pronounce the divorce", he added.
The text now states clearly that "Nothing in this Regulation shall oblige the courts of a participating Member State whose law does not provide for divorce, or does not deem the marriage in question valid for the purposes of divorce proceedings, to pronounce a divorce by virtue of the application of this Regulation".
What is not covered?
The regulation should apply only to the dissolution or loosening of marriage ties, and the national law determined by the regulation's conflict-of-law rules should apply only to the grounds for divorce and legal separation. MEPs sought to make the narrowness of its scope clear from the outset, so as to avoid causing disappointment.
The regulation will not apply to the legal capacity of natural persons, the existence, validity or recognition of a marriage, the annulment of a marriage, the name of the spouses, the property consequences of the marriage, parental responsibility, maintenance obligations and trusts or successions.
After giving its consent, in June, to the use of the enhanced cooperation procedure, Parliament is now being consulted on the substantive rules, although the Belgian presidency handled the matter procedurally much as if it were a Council/Parliament "co-decision" file.
Non-recognition of marriage or divorce
The Council also backed a request by Parliament's rapporteur that the Commission table a proposal to amend the "Brussels II bis Regulation" on jurisdiction and the recognition and enforcement of judgments in matrimonial matters, in order to cater for a forum necessitatis to cover cases in which a Member State's law does not provide for divorce or does not deem the marriage in question valid for the purposes of divorce proceedings.
According to Commission and Council figures, there are around 122 million marriages in the EU, of which around 16 million (13%) are considered "international". There were over 1 million divorces in the 27 EU Member States in 2007, of which 140,000 (13%) had an "international" element. The Member States with the biggest shares of international divorces in 2007 were Germany (34,000), France (20,500) and the UK (19,500).
This proposal follows a request by nine EU Member States (Austria, Bulgaria, France, Hungary, Italy, Luxembourg, Romania, Slovenia and Spain), to move forward together after a 2006 Commission proposal (the so-called "Rome III" regulation), became deadlocked in the Council. The nine have meanwhile been joined by Germany, Belgium, Latvia, Malta and Portugal. Greece, which initially wanted to join in the enhanced co-operation procedure, later withdrew. Other EU Member States may join at any time.
Under EU rules, enhanced co-operation can be used to enable some Member States to move forward on new rules when a unanimous agreement cannot be found. Enhanced co-operation was first introduced by the Amsterdam Treaty, under the name "closer co-operation". The Nice Treaty renamed the mechanism "enhanced co-operation" and altered its scope, conditions and the applicable procedure. The Lisbon Treaty enables a minimum of nine Member States to co-operate using the European institutional framework where a legislative initiative in an area of non-exclusive EU competence is blocked. Enhanced co-operation may begin after the Council authorises it on the basis of a Commission proposal and after obtaining the consent of the European Parliament.
Parliament gave its consent to the proposal authorising enhanced co-operation on the law applicable to divorce and legal separation on 16 June 2010. It is now being consulted on the substantive rules.
The forum necessitatis proposal is intended for cases where the courts of a Member State which have jurisdiction in accordance with the regulation could not grant a divorce for specific reasons (for instance, because that Member State does not permit same-sex marriages).
In the chair: Klaus-Heiner LEHNE (EPP, DE)