Monday, March 29, 2010

Proposed New European Choice of Law Divorce Rules

Ten European countries are about to proceed with divorce law rules that will clarify which law applies to international marriages.

The new rules will apply to Austria, Bulgaria, France, Greece, Hungary, Italy, Luxembourg, Romania, Slovenia and Spain. The rules will apply when one spouse of a divorcing couple has a connection with one of the listed countries.

The proposal will allow international couples to choose the applicable law if they were to separate, as long as it is the law of a country to which they have a close connection (such as long-term residence or nationality). For example, it would allow a Swedish-Finnish couple living in Spain to agree that Swedish or Finnish law applies if they were to divorce.

If the spouses themselves cannot agree on the applicable law, it will be determined on the basis of the following connecting factors:

• Divorce and legal separation are primarily subject to the law of the country where the spouses have their common habitual residence;

• Failing that, where they had their last recent common habitual residence if one of them still resides there;

• Failing that, to the law of the spouses’ common nationality; and,

• Failing that, to the law of the court before which the matter is brought.

Under this formula, the law of the country where the divorce or legal separation was requested will apply in the vast majority of cases. For example, if an international couple living abroad in another EU country asks for a divorce there, the most important factor for the court would be their country of common habitual residence. That country's laws would therefore apply.

The idea is that couples would have more legal certainty, predictability and flexibility and that this would help to protect spouses and their children from complicated, drawn-out and painful procedures. The proposals are also designed to protect weaker spouses from being put at an unfair disadvantage in divorce proceedings. At the moment, the Commission says, the partner who can afford travel costs and legal fees can "rush to court" in another country so that the case is governed by a law that safeguards his interests. For example, if one spouse from a Polish couple moves to Finland, he could ask for a divorce there after one year without the other spouse's consent.

Several EU countries have refused to participate in the new scheme. Under the EU’s “enhanced cooperation” process a group of nine or more EU countries may go ahead as a procedure of last resort when a proposal fails to win the support of enough countries through the normal EU legislative procedure. Existing national rules will not be affected, and other EU countries can decide to apply the rules at any time.