The
Brussels II Regulation 2003
Applicable law in matters of divorce
and legal separation
New Chapter for determining the applicable law in matters of divorce and
legal separation
As from 1 March 2006 a new Chapter is inserted into the Brussels II Regulation
2003: Chapter IIA ‘Applicable law in matters of divorce and legal
separation’. This, however, is not yet in force at this moment.
The new Chapter IIA is introduced to harmonise conflict-of-law rules in
matters of divorce and legal separation, based in the first place on the
choice of the spouses.
‘The choice is 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.
The majority of the respondents to the Green Paper considered that
common conflict-of-law rules should apply to legal separation and
divorce, since legal separation is in many cases the necessary precursor
to divorce. The Member States that recognise legal separation apply
the same conflict-of-law rules to divorce and legal separation. By
contrast, most stakeholders were not in favour of extending these
rules to marriage annulment, which is closely linked to the validity
of the marriage and generally governed by the law of the State where
the marriage was celebrated ("lex loci celebrationis") or
the law of the nationality of the spouses ("lex patriae")’
[Explanatory Memorandum COM) (2006) final]
‘Position of the United Kingdom, Ireland
and Denmark
The United Kingdom and Ireland do not participate in co-operation
in matters covered by Title IV of the Treaty unless they give notice
of their wish to take part in accordance with Article 3 of the Protocol
on the position of the United Kingdom and Ireland annexed to the Treaty
on European Union and the Treaty establishing the European Community.
Denmark is not participating in the adoption of this Regulation and
is not bound by it nor subject to its application by virtue of Articles
1 and 2 of the Protocol on the position of Denmark annexed to the
Treaty on European Union and the Treaty establishing the European
Community’ [Explanatory Memorandum COM) (2006) final].
Choice of law by the parties (Article 20a)
| Article
20a Choice of law by the parties
- 1. The spouses
may agree to designate the law applicable to divorce and legal
separation. The spouses may agree to designate one of the following
laws:
a. the law of the State of the last
common habitual residence of the spouses insofar as one of them
still resides there;
b. the law of the State of the nationality
of either spouse, or, in the case of United Kingdom and Ireland,
the “domicile” of either spouse;
c. the law of the State where the spouses
have resided for at least five years;
d. the law of the Member State in which
the application is lodged.
- 2. An agreement designating the applicable
law shall be expressed in writing and be signed by both spouses
at the latest at the time the court is seised.. |
‘The vast majority of the national conflict-of-law rules only
foresee one solution in a given situation. The proposal seeks to enhance
the flexibility of the spouses by allowing them to choose the law applicable
to divorce and legal separation. The laws available are confined to the
laws with which the spouses have a close connection. The rule includes
certain procedural requirements to ensure that the spouses are aware of
the consequences of their choice’ [Explanatory Memorandum COM) (2006)
final].
Applicable law in the absence of choice by the parties
(Article 20b)
| Article
20b Applicable law in the absence of choice by the parties
In the absence of choice pursuant to Article
20a, divorce and legal separation shall be subject to the law
of the State:
a. where the spouses have their common
habitual residence, or failing that,
b. where the spouse had their last
common habitual residence insofar as one of them still resides
there, or failing that,
c. of which both spouses are nationals,
or, in the case of United Kingdom and Ireland, both have their
“domicile”, or failing that,
d. where the application is lodged. |
‘In the absence of choice by the parties, the applicable law would
be determined on the basis of a scale of connecting factors, based in
the first place on the habitual residence of the spouses. This uniform
rule will ensure legal certainty and predictability. The introduction
of harmonised conflict-of-law rules is likely to greatly reduce the risk
of "rush to court" since any court seised within the Community
would apply the law designated on the basis of common rules. The fact
that the rule is based in the first place on the habitual residence of
the spouses and, failing that, on their last habitual residence if one
of them still resides there will result in the application of the law
of the forum in the vast majority of cases. The problems relating to the
application of foreign law will therefore be scarce’.. [Explanatory
Memorandum COM) (2006) final].
Application of foreign law (Article 20c)
| Article
20c Application of foreign law
Where a law of another Member State is applicable,
the court may make use of the European Judicial Network in civil
and commercial matters to be informed of its contents. |
‘Although this is not explicitly stated in the text, the proposed
Regulation is meant to be of universal application, meaning that the conflict-of-law
rule can designate the law of a Member State of the European Union or
the law of a third State. Where the law of another Member State is designated,
the European Judicial Network in civil and commercial matters can play
a role in assisting the courts on the contents of foreign law’ [Explanatory
Memorandum COM) (2006) final].
Exclusion of renvoi (Article 20d)
| Article
20d Exclusion of renvoi
The application of a law designated under
this Regulation means the application of the rules of that law
other than its rules of private international law. |
‘To allow renvoi would jeopardise the objective of legal certainty.
The designation of a law under the uniform conflict-of-law rules consequently
means designating the substantive rules of that law and not its rule of
private international law’ [Explanatory Memorandum COM) (2006) final].
Public policy (Article 20e)
| Article
20e Public policy
The application of a provision of the law
designated by this Regulation may be refused only if such application
is manifestly incompatible with the public policy of the forum |
‘The mechanism of the public policy exception allows the court
to disregard the rules of the foreign law designated by the conflict-of-law
rule where the application of the foreign law in a given case would be
contrary to the public policy of the forum. The word "manifestly"
incompatible means that the use of the public policy exception must be
exceptional’ [Explanatory Memorandum COM) (2006) final].
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