Applicable law and jurisdiction in matrimonial matters (Proposal for a Regulation)

The proposal on applicable law and jurisdiction in matrimonial matters aims to enhance legal certainty, predictability, flexibility and access to court for "international couples" *, particularly as regards divorce cases. Once it is adopted, the proposal will amend Council Regulation (EC) No 2201/2003.

PROPOSAL

Proposal for a Council Regulation of 17 July 2007 amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing rules concerning applicable law in matrimonial matters [COM(2006) 399 final - Not published in the Official Journal].

SUMMARY

The proposal, which was presented by the European Commission on 17 July 2006 following the Green Paper on applicable law and jurisdiction matters in divorce matters (FR), aims to provide a clear and comprehensive legal framework in matrimonial matters in the European Union. In view of the high divorce rate in the European Union (EU), the Commission hopes to enhance legal certainty, predictability, flexibility and access to court for "international couples" *, particularly as regards divorce and legal separation cases. Once it is adopted (consultation procedure CNS/2006/0135), the proposal will amend Regulation (EC) No 2201/2003.

The lack of Community rules - a source of legal uncertainty

There are currently no Community rules in the field of applicable law in matrimonial matters. Regulation (EC) No 2201/2003 of 27 November 2003 sets out rules on jurisdiction, recognition and enforcement of judgments in matrimonial matters. It does not, however, contain any rules in the field of applicable law.

Regulation (EC) No 2201/2003 allows spouses to choose between several alternative grounds of jurisdiction. When a matrimonial proceeding is brought before a court of a Member State, the applicable law is determined on the basis of the national conflict-of-law rules of that Member State. These rules are based on very different criteria when it comes to determining the applicable law in each case. Most Member States are familiar with the connection factor, whereby the proceeding is governed by the legal order with which it has the closest connection. Other Member States apply systematically their domestic laws ("lex fori") to matrimonial proceedings.

The diversity of national rules on applicable law and differences in substantive law may lead to legal uncertainty in matrimonial proceedings of an international nature. This can make it very difficult for "international" couples to predict which law will apply to their matrimonial proceeding. For instance, a Maltese-Finnish couple, married under Belgian law but residing mainly in a non-EU country, may have some difficulty ascertaining which law will apply if they decide on a divorce.

Most Member States do not offer spouses the choice of applicable law. This may lead to a result that does not correspond to people's legitimate expectations. In addition, current rules may lead one of the spouses to bring proceedings before a court ahead of the other spouse in order to ensure that the proceeding is governed by a particular law which safeguards his or her own interests (the "rush to court").

Establishing common rules in matrimonial matters

With a view to providing a clear and comprehensive legal framework in matrimonial matters in the European Union, the Commission proposal is aimed at:

Improving legal certainty with harmonised conflict-of-law rules: The proposal introduces harmonised conflict-of-law rules in matters of divorce and legal separation. Under these rules, spouses will be able to choose the law applicable to their divorce or legal separation. The choice is, however, confined to laws with which the spouses have a close connection by virtue of their last common habitual residence if one of them still resides there, the nationality of one of the spouses, the law of the State of their previous habitual residence or the law of the forum. If the spouses do not themselves make the choice, the applicable law will be determined on the basis of a scale of connecting factors, beginning with the habitual residence of the spouses.
Increasing flexibility by introducing limited party autonomy: The proposal enables the spouses to choose the applicable law and competent court in proceedings concerning divorce and legal separation. This would make the existing legal framework more flexible as there is currently very little scope for party autonomy in matrimonial matters. That said, certain formal requirements do need to be respected to ensure that both spouses are aware of the consequences of their choice. The possibility of choosing the competent court does not apply to proceedings relating to marriage annulment.
Ensuring access to court: The proposal provides for the possibility of choosing the competent court in proceedings relating to divorce and legal separation ("prorogation"). This will facilitate access to court for spouses of different nationalities. The rule on prorogation applies regardless of whether the couple lives in a Member State or in a third country. The proposal also introduces a uniform and exhaustive rule on "residual jurisdiction" in order to enhance legal certainty and ensure access to court in matrimonial matters for spouses who live in a third country but would like to bring proceedings in a Member State with which they have a close connection.
Preventing a "rush to court" by one spouse: Establishing harmonised conflict-of-law rules as set out in this proposal should address the problem of a "rush to court" by one spouse, i.e. where one spouse applies for divorce before the other spouse has done so in order to ensure that the proceeding is governed by a law which safeguards his or her own interests. Harmonising the rules governing applicable law should significantly reduce the risk of this, as the applicable law would be the same in any court applied to within the European Union.

The proposed Regulation is intended to be of universal application, i.e. the conflict-of-law rule can designate the law of a Member State of the European Union or the law of a third country.

If the law designated by virtue of the Regulation is clearly contrary to public policy, the judge may, in exceptional circumstances, disregard its application.

Where the law of another Member State is applicable, the court may make use of the European Judicial Network in civil and commercial matters to obtain information on its contents.

Denmark is not participating in the adoption of this proposed Regulation by virtue of the Protocol on the position of Denmark annexed to the Treaty on European Union and the Treaty establishing the European Community. Once the Regulation is adopted, Denmark will therefore not be bound by it or subject to its application. The United Kingdom and Ireland have stated that they do not wish to participate in the adoption and application of the proposed Regulation. They are entitled to this opt-out under the Protocol on the position of the United Kingdom and Ireland annexed to the same Treaties.

Key terms used in the act

international couple: couple consisting of spouses of different nationalities (e.g. a Spaniard and a Pole) or of spouses residing in different Member States (e.g. one in Luxembourg and the other in Germany) or in a Member States of which at least one of the two is not a national (e.g. an Italian living in Greece with his/her Greek spouse)

References and procedure

Proposal	Official Journal	Procedure
COM(2006) 399 final	-	CNS/2006/0135

RELATED ACTS

Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation [Official Journal L 343 of 29.12.2010].

See also