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On December 20, 2010 the European Union Council adopted the Rome III Regulation implementing enhanced cooperation in the area of the law applicable to divorce and legal separation.
Article 5 allows spouses to agree to designate the law applicable to divorce and legal separation provided that it is one of the following laws:
(a) the law of the State where the spouses are habitually resident at the time the agreement is concluded, or(b) the law of the State where the spouses were last habitually resident, insofar as one of them still resides there at the time the agreement is concluded, or
(c) the law of the State of nationality of either spouse at the time the agreement is concluded, or
(d) the law of the forum.
Article 8 provides that if the spouses do not agree on a choice the law that will govern their divorce and separation shall be the law of the State:
(a) where the spouses are habitually resident at the time the court is seized; or, failing that,
(b) where the spouses were last habitually resident, provided that the period of residence did not end more than one year before the court was seized, in so far as one of the spouses still resides in that State at the time the court is seized; or, failing that,
(c) of which both spouses are nationals at the time the court is seized; or, failing that,
(d) where the court is seized.
The rules are intended to provide greater certainty, predictability and flexibility, and to prevent the EU’s notorious "rush to court" that the Brussels II Regulation has encouraged.
The Regulation will apply to 14 states, these being Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia. Other EU Member States may join at any time. Notable “refusenik” countries are Britain, Ireland and the Scandinavian countries.
