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EU approves new divorce rules for international couples

Ratification by European Parliament expected this month

The EU Legal Affairs Committee and EU justice ministers have approved new rules permitting divorcing international couples to choose which EU country's law should govern their divorce. Under the new rules a Franco-German couple living in Belgium could agree whether French, German or Belgian law should apply to their divorce.

The new rules were approved by the Legal affairs Committee on Thursday, 2 December and by EU justice ministers on the following day, and are expected to be ratified by Parliament as a whole in December. 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 are said to 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 necessitas 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).