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Due to lack of unanimity, a small Europe of divorce' seems to be on the horizon. It is true that, even if the two partners are EU nationals, going ahead with the dissolution of a binational marriage can quickly become a legal headache. Who is the competent judge? What is the applicable law? On the questions of conflict of jurisdictions' and conflict of laws', Community law says nothing. The European Commission did make a proposal, in July 2006, known as Rome III', modifying the legislation to introduce common rules on the conflict of laws and the competent jurisdiction in matrimonial matters, in particular divorce(1). But, in June 2008, Sweden, worried about retaining its more liberal national law, vetoed it. Any subject pertaining to family law requires unanimity.

But progress could nonetheless be made. About ten countries - Romania, Hungary, Austria, Spain, Italy, Slovenia, Luxembourg, Greece, France and Bulgaria - want to move forward. Especially because the subject - visible and concrete - interests European citizens as well as their courts: the EU has 350,000 binational marriages and 170,000 binational divorces each year. These figures will rise further with the EU's geographic enlargement and the abolition of borders. Since the Justice Council, on 25 July 2008, the question of using reinforced cooperation', ie a formal initiative allowing a small group of member states to implement the European Commission's proposal, has been raised. In fact, eight countries asked for it and reinforced cooperation' only requires gathering eight countries (France supports the initiative without officially announcing it to respect the neutrality obligations of the EU Presidency, and Bulgaria is coming around to the idea).

This moment is historic. The reinforced cooperation' mechanism has been available since the 1997 Treaty of Amsterdam, but it has never been activated due to lack of political will. Some see in the initiative of these eight countries the spectre of a two-speed Europe', following the example of Estonia, which evoked "opening Pandora's box". This concern is shared by Poland, the Czech Republic, Finland and Latvia.


However, the status quo remains likely to increase the number of slightly different situations as matrimonial law varies so much from one country to another. For example, if an Italian-Portuguese couple married in Italy want to divorce, and the husband decided to return to Portugal and the wife to remain in Italy, they would certainly have the choice of jurisdiction, but the Italian court will usually apply the law of the country where the marriage was mainly spent, while in Portugal, it is the law of the usual country of residence which prevails. On the other hand, an Italian couple living in Germany will not be able to divorce there: in their case, it is the law of their shared nationality - Italian - which will be applied. In France, Belgium and Germany, divorce is officially linked to some of its consequences (alimony, partition of goods, allocation of family home, child custody, etc). This may pose problems for one of the divorcees. For Sweden, however, if the national judge is competent, he applies the lex fori', in other words, his own.

At this stage, the Commission may or may not propose another draft. Justice, Liberty and Security Commissioner Jacques Barrot, however, has no intention to divide Europe: "We are examining it [the request for reinforced cooperation'] without taboos, but we want to see all the consequences that that involves," he had said in July.

The rules in the conflict of laws set out in the proposal aim to make it so that, no matter where the married couple present their request for a divorce, the courts of a member state usually apply the same substantive law (avoiding forum shipping').

If it is presented, the reinforced cooperation' proposal will have to clear the hurdle of qualified majority, which has not yet been gathered. Sweden announced that it would not oppose it, and the UK, the Netherlands and Ireland have implied that they will not participate. But many others - Germany, Belgium, Portugal, Lithuania and Slovakia - are hesitating. There has never been a question of harmonising the divorce laws, nor of creating the possibility that a married couple, in the framework of a divorce or legal separation procedure, can choose the competent court by joint agreement and define the applicable law in the framework on this litigation. If no law can be chosen by the couple, the text would introduce conflict of law' rules. France, which holds the EU Presidency, is counting on the pressure of the applicant countries: "Reinforced cooperation is not a tool against Europe, but a way of starting with some to convince others. It is a convincing tool," said French Minister of Justice Rachida Dati, rejecting any notion of division'.

(1) Regulation 2201/2003/EC, called Brussels II bis', deals with provisions on the competent jurisdiction for cross-border divorce and child custody, but does not cover the question of applicable law.
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Publication:European Report
Date:Sep 18, 2008

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