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Applicable law and jurisdiction in divorce matters (Green Paper)

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The European Commission is examining the issue of jurisdiction and applicable law in matrimonial matters, particularly divorce. The Green Paper summarises the current state of Community legislation in this field, highlighting and suggesting solutions.

ACT

Green Paper on applicable law and jurisdiction in divorce matters [COM(2005) 82 final - Not published in the Official Journal].

SUMMARY

In 1998 the European Council in Vienna emphasised that the aim of a common judicial area is to make life simpler for citizens, in particular in cases affecting their everyday life, such as divorce. In November 2004 it called on the Commission to present a Green Paper on the conflict-of-law rules in matters relating to divorce ("Rome III") in 2005.

There are currently no Community rules on applicable law * in divorce matters. Only Regulation (EC) No 2201/2003 (known as the "new Brussels II Regulation", replacing Regulation (EC) No 1347/2000) includes rules on jurisdiction and recognition in divorce matters; it does not however contain any rules on applicable law.

The increasing mobility of citizens within the European Union has resulted in an increasing number of "international" * marriages where the spouses are of different nationalities or live in a Member State of which they are not nationals. Should such a couple decide to divorce, several laws may be invoked. The high number of divorces within the European Union means that applicable law and international jurisdiction in divorce matters affect a considerable number of citizens. As an example, approximately 15 per cent of the divorces pronounced in Germany each year (approximately 30 000 couples) concern couples of different nationalities.

Situation and current shortcomings in the field of divorce: jurisdiction

As regards jurisdiction * when an international couple * decides to divorce, the "new Brussels II Regulation" enables the spouses to choose between several grounds of jurisdiction. Once a divorce proceeding is brought before the courts of a Member State, the applicable law is determined pursuant to the national conflict-of-law rules of that State. Given the significant differences between these rules, it is often difficult for a couple to predict which national law will apply in their particular case. This leads to a lack of legal certainty and predictability. Furthermore, the lis pendens rule laid down by Brussels II, whereby the first court seised is the competent court if there is a connecting factor *, may lead to a "rush to court" with one spouse filing for divorce as quickly as possible in one Member State in order to obtain a particular favourable result.

Absence of uniform conflict-of-law rules

Once a case has gone to court, applicable law is determined on the basis of national conflict-of-law rules *, which differ from Member State to Member State, as does national substantive law as regards divorce (see the Commission staff working paper, presented on 14 March 2005 as an Annex to the Green Paper, on the Member States' substantive and procedural rules governing divorce [PDF ].

The range of different conflict-of-law and jurisdiction rules gives rise to a number of problems, particularly as regards international couples *. The problems are particularly acute when the spouses have no common habitual residence or nationality or, if they are of the same nationality, live in a Member State of which they are not nationals or in a third country. In the latter case, they risk finding themselves in a situation where no court within the European Union or elsewhere is competent to divorce them.

Potential solutions

The Commission Green Paper sets out seven viable solutions:

  • maintaining the status quo, i.e. making no changes to the current situation;
  • harmonising the conflict-of-law rules based on a set of uniform connecting factors;
  • providing spouses with a (limited) choice of applicable law;
  • revising the grounds of jurisdiction listed in Article 3 of Council Regulation (EC) No 2201/2003;
  • revising the rule on residual jurisdiction in Article 7 of Council Regulation (EC) No 2201/2003;
  • allowing spouses to agree upon the competent court ("prorogation of jurisdiction"); this court would apply the law designated under its national conflict-of-law rules;
  • in exceptional circumstances, introducing the possibility to transfer the case to a court of another Member State on the basis of a closed list of connecting factors.

The Green Paper also envisages combining these potential solutions.

The purpose of the Green Paper is to initiate a broad-based consultation on this issue. The Commission will be presenting a proposal for a Regulation on the subject soon.

Key terms used in the act
  • Jurisdiction: the capacity of courts to hear and rule on the issues involved in the case. The grounds of jurisdiction for marriage annulment (divorce) are defined in Chapter II of Regulation (EC) No 2201/2003.
  • International couple: a married couple in which the spouses are of different nationalities or live in a Member State of which they are not nationals.
  • Connecting factors: criteria which indicate which law is applicable to a given legal relationship. Connecting factors ensure that the law governing the relationship is the law of the country with which the spouses have the strongest connection (often determined on the basis of their nationality or place of habitual residence).
  • Applicable law (rules of): the rules on applicable law are known as "conflict-of-law rules" and aim to determine which of the laws of the different countries will apply in a given case. Applicable law is generally determined on the basis of connecting factors or the lex fori (the national substantive law of the country having legal competence).
  • Competent court: any Member State authority with jurisdiction in the matters covered by the scope of application of this Regulation.

RELATED ACTS

Council Regulation (EC) No 2201/2003concerning jurisdiction and the recognition and enforcement of judgements in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000.

Last updated: 07.06.2006

See also

For further information, please see the following websites:

European Commission, Directorate-General for Justice, Freedom and Security: Freedom, Security and Justice

Divorce and parental responsibility - mutual recognition of family law decisions throughout the EU

European Judicial Network in civil and commercial matters:

Divorce - Community law

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