New EU rules for cross-border divorces and legal separations: ambitions and doubts
It has been estimated that out of the approximately 122 million marriages in the EU, about 16 million (13%) have an ‘international’ character. These figures make it clear that the potential number of divorces and legal separations with cross-border implications is considerable.
Last December the Council adopted Regulation No. 1259/2010, implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, the first piece of EU legislation ever to be adopted on the basis of an ‘enhanced cooperation’. The countries involved are Spain, Italy, Hungary, Luxembourg, Austria, Romania, Slovenia, Bulgaria, France, Germany, Belgium, Latvia, Malta and Portugal. Other Member States will still be able to join at a later stage. The text should apply in the participating Member States starting from mid-2012.
The Regulation establishes conflict-of-law rules allowing determination of which legislation applies to an international divorce or legal separation in cases where the provisions of more than one legal order could be applied. One of the main elements of the text is the fact of allowing spouses to designate the law applicable to their divorce or legal separation, as long as it is the law of a country to which they have a close connection according to one of the criteria specified in the Regulation: the State where the spouses are habitually resident at the time of the agreement; or where the spouses were last habitually resident, in so far as one of them still resides there at the time of the agreement; the nationality of either spouse at the time the of the agreement; law of the forum. Only in the absence of a choice by the spouses, will the law of the State determined by the fixed ‘cascade’ criteria provided by Article 8 apply. It is to be noted that some matters are excluded from the scope of application of the Regulation (e.g. existence, validity or recognition of a marriage; annulment of a marriage). Article 13 contains an important safeguard, stating that nothing in the Regulation will oblige the courts of a participating Member State, whose law does not provide for divorce or does not deem the marriage in question valid for the purposes of divorce proceedings, to pronounce a divorce in accordance with the Regulation. This should provide for the necessary respect for the legitimate options made by some Member States in the area of family law (e.g. Malta regarding the lack of provisions concerning divorce, Italy among others for the non-recognition of same sex marriages).
A first assessment
Despite good intentions and the efforts made to promote the positive impact of the new rules, the Regulation presents some debatable aspects that would have benefited from deeper reflection. The idea of resorting to an exceptional instrument like enhanced cooperation in the area of family law, in which ethical implications and national sensibilities easily come into play, is in itself problematic. As for the priority given to the spouses’ autonomy in choosing the applicable law, it could create contradictions with the need for legal certainty and predictability and have a negative impact on the position of the weaker or less informed spouse. Moreover, not all the criteria identified for this purpose may prove sufficiently solid. Secondly, the Regulation in recital 25 improperly uses the principle of non-discrimination to limit the legitimate options of the Member States, seemingly granting it in the process an unjustified privileged status with respect to others contained in the EU Charter of Fundamental Rights. The eagerness with which the Commission criticised the insertion of the safeguard provided by Article 13 - a provision which, in the absence of a ‘right to divorce’, does not present any element of incoherence - is also a symptom of a lack of attention to the sensibilities of the Member States and the peculiarities of their systems and legal traditions. The main lesson to be learnt from the first successful enhanced cooperation is that respect for the diversity of national legal systems, especially in the delicate field of family law, should derive naturally from compliance with the Treaties, rather than from the tenacity of some delegations in the Council. A prudent approach on the part of the European Commission will contribute to this crucial goal.
According to the Treaties, Member States can establish ‘enhanced cooperation’ between themselves within the framework of the Union’s non-exclusive competences with the aims of furthering the objectives of the Union, protecting its interests and reinforcing its integration process. It must be a last resort, when the objectives of such cooperation cannot be attained within a reasonable period by the Union as a whole, and at least nine Member States must participate in it. Acts adopted in this framework bind only participating Member States.