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Family Law

The leading authority on all aspects of family law

08 APR 2010

EU Regulation to allow couples to choose jurisdiction for divorce

THURS 25/03/2010 - The European Commission has proposed a new Regulation 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.

The proposal follows a request from ten Member States (Austria, Bulgaria, France, Greece, Hungary, Italy, Luxembourg, Romania, Slovenia and Spain) and would be the first time the new 'enhanced cooperation' mechanism would be used in the EU.

There are around 300,000 international marriages per year in the EU. Under the proposed Regulation couples will be able to 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 in a pre-nuptial contract which law would apply in the event of their divorce.

The new rules would tackle '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. 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.

The Commission first proposed helping international couples in 2006, but the Rome III Regulation did not get the required unanimous support of EU governments. Since then, the ten EU countries said they would like to use the enhanced cooperation mechanism 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. However, other EU countries keep the right to join when they want.

Member States must now vote on whether the ten countries may proceed with enhanced cooperation and the European Parliament must also give its consent. To read the Commission's proposal, click here.

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