Family : Common Rules on Whose Divorce Law to Apply Proposed

European Social Policy, September 5, 2006 | Go to article overview

Family : Common Rules on Whose Divorce Law to Apply Proposed


Separated couples would have greater choice over how they get divorced, under a new European Commission proposal. A draft Regulation tabled on 17 July allows them to choose both the court that will hear the case (jurisdiction) and the law that will be applied (applicable law), although their choice would not be unlimited. The move needs the unanimous backing of the EU Council of Ministers to become law, with the European Parliament only consulted.

RESISTANCE AHEAD?

"We are not trying to harmonise substantive laws on divorce", a Commission official unveiling the proposal was at pains to point out. Malta is the only member state where divorce is illegal, while in the other EU24, laws vary enormously. Ireland and Poland have a restrictive divorce regime, while Finland and Sweden have liberal ones. There are some 170,000 divorces in the EU each year with a cross-border dimension. The rate of international' divorces is highest in Estonia (about 50%) and lowest in Hungary (1.5%). Often, these cases throw up tricky questions about jurisdiction and applicable law because national rules on conflicts of law vary widely. But whether there is a political desire among the member states for harmonised rules remains to be seen. Ireland for one is thought to be opposed to the initiative, according to one EU source.

BIG DECISIONS

The Commission proposes amending the 2003 Brussels II' Regulation (2201/EC), which deals with jurisdiction in cross-border divorce and child custody cases but which currently does not cover applicable law. On jurisdiction, the new regime would allow spouses of different nationality to designate between themselves a member state court of which only one of them is a national. On applicable law, they could choose one of the following laws: last habitual common residence; law of nationality of either spouse; law of state where they have resided for at least five years; law of member state where application is lodged. …

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