Law applicable to divorce and legal separation

KEY POINTS

Participating countries

The regulation applies to 17 Member States which participate in enhanced cooperation on this issue: Belgium, Bulgaria, Germany, Estonia, Greece, Spain, France, Italy, Latvia, Lithuania, Luxembourg, Hungary, Malta, Austria, Portugal, Romania, and Slovenia.

Other Member States can join at any time.

When does the regulation apply?

It applies where there is a conflict of national laws in cases of divorce and legal separation, i.e. where several national laws could apply to the same divorce or legal separation (for example, the national law of the country of the spouses' nationality, or the national law of the country of their main place of residence).

It does not apply to questions of:

• the legal capacity of natural persons;
• the existence, validity or recognition of a marriage;
• the annulment of a marriage;
• the name of the spouses;
• the property consequences of the marriage;
• parental responsibility;
• maintenance obligations;
• trusts or successions.

Choice of law

Spouses may make a formal agreement choosing which national law will apply to their divorce or legal separation as long as it is either the law of:

• the country where the spouses have their main place of residence at the time the agreement is concluded; or
• the country where the spouses had their last main residence, in so far as one of them still resides there at the time the agreement is concluded; or
• the country of nationality of either spouse at the time the agreement is concluded; or
• the country in which the case is brought.

An agreement between the spouses may be made and changed at any time up to when the case comes before the court.

Where no choice of law is made

If the spouses do not choose the law that should apply to their divorce or legal separation, the case will be subject to the law of the country:

1. where the spouses have their main residence at the time the case comes before the court; or, if not
2. where the spouses had their last main residence, provided that the period of residence did not end more than 1 year before the case came before the court, in so far as one of the spouses still lives in that country at the time the case comes to court; or, if not
3. of which both spouses are nationals at the time the case is brought before the court; or, if not
4. in which the case is brought.

If the national law applicable to the case does not include a divorce law or does not grant one of the spouses equal access to divorce or legal separation on grounds of their sex, the law of the country in which the case is brought will apply.