Brussels, 24 March 2010
European Commission goes ahead with 10 countries to bring legal certainty to children and parents in cross-border marriages
An Austrian woman marries a British man in the UK. The couple lives for two years in Austria with their son. The husband then leaves and the wife wants a divorce. However, she doesn't know which law will apply to her divorce. Can she get a divorce under Austrian law or does UK law apply? Thousands of Europeans find themselves in such difficult situations each year because each EU country has its own system for deciding which country’s law applies to divorces. The European Commission today proposed a concrete solution: a law that will allow couples to choose which country's laws apply to their divorce. The proposed EU Regulation will help couples of different nationalities, couples living apart in different countries or living together in a country other than their home country. The aim is to lessen the burden on children and to protect weaker partners during divorce disputes. There are around 300,000 international marriages per year in the EU. Today's proposal follows a request from 10 Member States (Austria, Bulgaria, France, Greece, Hungary, Italy, Luxembourg, Romania, Slovenia and Spain) and would be the first time the "enhanced cooperation" mechanism would be used in EU history.
"International couples can encounter arbitrary legal problems that turn the tragedy of divorce into a financial and emotional disaster, making peoples' lives very hard," said Vice President Viviane Reding, the EU's Commissioner for Justice, Fundamental Rights and Citizenship. "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. This is why we decided to move ahead today."
The current situation for cross-border couples is complex:
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 law.
These conflicting applicable law rules lead to legal complications and heavy costs, making amicable and planned divorces harder.
The Commission proposed today a common formula for deciding which country's rules would apply to international couples. Under the proposed Regulation:
International couples will have more control over their separation. They could decide which country’s law would apply to the divorce, provided that one spouse has a connection to the country. For example, a Swedish-Lithuanian couple living in Italy could ask an Italian court to apply Swedish or Lithuanian law;
Courts would have a common formula for deciding which country's law applies when couples cannot agree themselves.
Couples would also be able to agree which law would apply to their divorce even when they do not plan to separate. This would give them more legal certainty, predictability and flexibility and 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 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.
The new rules would tackle this sort of "forum shopping" in participating Member States by guaranteeing that the law of the country in which the weaker spouse lives with her partner or in which her partner last resided with her will apply.
EU Member States must now vote on whether the 10 countries may proceed with enhanced cooperation. The European Parliament must also give its consent. "10 governments have asked for the Commission to propose a solution. Using the enhanced cooperation procedure is a good sign that the EU has the flexibility to help its citizens, even with difficult legal issues. My goal is to ensure that citizens can take full advantage of their right to live and work across European borders," said EU Justice Commissioner Viviane Reding.
The Commission first proposed helping international couples in 2006, but the plan (so-called "Rome III" Regulation") did not get the required unanimous support of EU governments. Since then, 10 EU countries (Austria, Bulgaria, France, Greece, Hungary, Italy, Luxembourg, Romania, Slovenia and Spain) said they would like to use so-called enhanced cooperation to advance the measure. Under the EU Treaties, enhanced cooperation allows nine or more countries to move forward on a measure that is important, but blocked by a small minority of Member States. Other EU countries keep the right to join when they want.
The Regulation proposed today has no effect on Member States' ability to define marriage.
Today's proposal can be found at: