The Proposal for Enhanced Cooperation in the Area of Cross-Border Divorce (Rome III)

This note provides an in-depth analysis of the main provisions of the Rome III Proposal of 2010 implementing enhanced cooperation for 14 Member States in the area of the law applicable to divorce and legal separation. It further identifies some difficulties of future application of the proposed provisions and suggests to reconsider in particular the following issues: the scope of application, the question as to when the spouses may designate the applicable law, the desirability of legal counselling, the use of the last habitual residence as a connecting factor, dual nationality, the conversion of legal separation into divorce, the (non-)application of foreign law and the “Malta” provisions.