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(Mar 30, 2010) On March 24, 2010, the European Commission (the executive body of the European Union, part of whose function is to draft proposals for new laws) (EC) made public a proposed regulation to simplify and clarify laws on international divorces in EU countries. Two highlights of the measure, which has the support of ten EU Member States, are: 1) it allows married couples from different Member States to choose which Member State's law would apply to a divorce, as long as one spouse has a connection to that country; and 2) it calls for courts to use a common formula for determining which Member State's law will apply when a couple cannot reach agreement themselves. (Bhargav Katikaneni, EU Proposes Simplified International Divorce Laws, PAPER CHASE NEWSBURST, Mar. 25, 2010, available at http://jurist.law.pitt.edu/paperchase/2010/03/eu-proposes-simplified-int
ernational.php
; Press Release, IP/10/347, RAPID, European Commission Goes Ahead with 10 Countries to Bring Legal Certainty to Children and Parents in Cross-Border Marriages (Mar. 24, 2010), available at http://europa.eu/rapid/pressReleasesAction.do?reference=IP/10/347&fo
rmat=HTML&aged=0&language=EN&guiLanguage=en
.)

The common formula to be used by the courts in deciding which country's law is applicable is based on the following 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. (Press Release, Memo/10/100, RAPID, Clearer Rules for International Couples –Frequently Asked Questions (Mar. 24, 2010), available at http://europa.eu/rapid/pressReleasesAction.do?reference=MEMO/10/100&
    format=HTML&aged=0&language=EN&guiLanguage=en
    .)

Given this formula, "the law of the country where the divorce or legal separation was requested will apply in the vast majority of cases." (Id.) In limited cases, adoption of the proposal could cause courts to apply a foreign law, but the measure has been formulated to avoid such an action giving rise to additional costs and delays in divorce proceedings. By the same token, a court might decide "not to apply a country's divorce law if it is manifestly contrary to the country's own public policy," e.g., if it is discriminatory. Nevertheless, it is claimed, "[t]he proposal does not in any way harmonise national divorce laws or practices, which remain very diverse for cultural and historical reasons." (Id.)

The proposal does not address the consequences of divorce, a subject which is either already covered by EU rules or will be covered under future EC proposals. At the end of 2008, the EU adopted a common approach on deciding which rules apply in matters of maintenance (alimony). The Commission is to make a proposal later in 2010 on the EU rules applicable to the division of property in divorce procedures involving international couples. (Id.)

The proposal also applies, in principle, to non-EU citizens. Thus, immigrants in EU Member States would be able to request that the law of their place of residence (where they last lived together) be applied in the case of divorce where the spouses end up living in different jurisdictions, instead of being subject, as is currently the case, to the application of the law of their common nationality. (Id.)

In the view of EU Vice President Viviane Reding, the new law would reduce litigation costs and protect the weaker spouse. She noted:

Thousands of couples find themselves in difficult personal situations because national legal systems have so far failed to provide clear answers. In many cases, children and the weaker spouse suffer. I do not want people in the EU to be left to manage complicated international divorces alone. I want them to have clear rules so that they always know where they stand. (Press Release, IP/10/347, supra.)

Under the existing situation for cross-border couples who wish to divorce, there are conflicting applicable law rules:

  • 20 EU countries determine which country's law applies based on connecting factors such as nationality and long-term residence, so that the spouses' divorce is governed by a law relevant to them.
  • 7 EU Member States (Denmark, Latvia, Ireland, Cyprus, Finland, Sweden, and the UK) apply their domestic laws. (Id.)

These rules, it has been pointed out, not only lead to heavy costs but to legal complications, "making amicable and planned divorces harder." (Id.)

The mechanism of "enhanced cooperation," whereby nine or more of the 27 EU Member States may pass a measure blocked by a few of the Member States into law, is likely to be applied to the proposal; other Member States can pass the law at a later date. (EU Moves to Clarify Divorce Laws, BBC NEWS, Mar. 24, 2010, available at http://news.bbc.co.uk/2/hi/europe/8585186.stm; Katikaneni, supra.) Use of the mechanism must first be approved by a qualified majority of the Council of EU Ministers, as well as by the European Parliament. (Press Release, Memo/10/100, supra.)

Author: Wendy Zeldin More by this author
Topic: Families More on this topic
Jurisdiction: European Union More about this jurisdiction

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Last updated: 03/30/2010