6th December 2010
Certain couples, who have different nationality, or spouses whose marital home is not their place of birth, will soon be able to choose the divorce law to be applied to their marriage dissolution as the European Union Legal Affairs Committee and EU justice ministers have approved new rules for international divorce.
The rules will come into force as a result of a new system of "enhanced co-operation" among EU Member States. So far, 14 Member States are taking part and it will become the first use of the procedure since the European Union was founded.
Once the new rules are in place, international couples who have strong connection to any of the 14 participating countries (habitual residence or nationality for example) will be able to choose which divorce law should be applied in the event of a separation.
If the couple fails to agree, the new rules will clarify which law is to be applied.
One of the expected main benefits of the new rules will be to halt the current "rush to court" by spouses who wish to seek jurisdiction in the country which they feel has the most favourable divorce laws for themselves.
Currently, the participating Member States are Austria, Belgium, Bulgaria, France, Germany, Hungary, Italy, Latvia, Luxembourg, Malta, Portugal, Romania, Slovenia and Spain. However, other EU members are able to take up the new rules if they so wish in the future.
The rules will take effect 18 months after each Member State approves them and are hoped to provide greater clarity, certainty and predictability to divorce law for international couples.
Legal Affairs Committee rapporteur Tadeusz Zwiefka, said, "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.
"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.
Currently, Commission and Council figures state there are around 122 million marriages in the EU. Around 16 million (13%) have an "international" element. In 2007, more than one million divorces occurred in the 27 EU Member States. Of those, around 140,000 could have had the new divorce law rules applied when deciding jurisdiction for the divorce settlement.