Openbare consultatie over regels internationale echtscheidingen (en)
The European Commission launched today a public consultation on the applicable law and jurisdiction in divorce matters. The current situation may lead to practical difficulties for the increasing number of "international" couples who divorce each year within the European Union. The Green Paper describes these difficulties and proposes possible solutions. The initiative is part of the European Union's on-going work to create a common judicial area in the field of family law with the aim to facilitate the daily life of the citizens.
"This is on of those issues that touch upon the daily life of our citizens" said Franco Frattini i, Vice-President of the Commission and Commissioner for Justice, Freedom and Security. The European Union has so far established common rules on jurisdiction and recognition in divorce matters, but it is also necessary to tackle the question of applicable law. It is currently difficult for an "international" couple who want to divorce to predict which national divorce law the divorce court will apply. The Green Paper takes stock of the current situation and proposes possible solutions. "The aim is not to harmonise the divorce laws of the Member States, but to find solutions which facilitate the life of the citizens., Vice-President Frattini said.
Thousands of citizens divorce each year in the European Union. Many of these divorces concern marriages between spouses of different nationalities or spouses living in different Member States. As an illustration, approximately 30.000 couples of different nationalities divorce each year in Germany only.
There are currently no Community rules on applicable law to divorces. Council Regulation (EC) No. 2201/2003 of 27 November 2003 sets out rules on jurisdiction of courts and provides for mutual recognition of divorce judgments, but does not include conflict-of-law rules. The current jurisdiction rules may in certain cases encourage a spouse to file for divorce before the other spouse to ensure the application of a particular divorce law. Another problem is the lack of legal certainty and predictability for the spouses. The current rules may finally result in situations that do not respond to the legitimate expectations of the citizens.
The lack of legal certainty and predictability is particularly striking when the spouses are of different nationalities and do not live in the same Member State. As an example, a Portuguese-Italian couple who split up shortly after the marriage and move back to their respective Member States may apply for divorce in either Portugal or Italy. An Italian court would apply the law of the State where the marriage was "principally based". A Portuguese court would, on the other hand, apply the law of the State with which the spouses have the "closest connection". The spouses would in both cases have difficulties to predict what the applicable law would be.
These and other problems are described in the Green Paper on the basis of practical examples. It suggests several possible solutions to enhance legal certainty and meet the legitimate expectations of the citizens. It is the beginning of a wide-ranging public consultation with all interested stakeholders. The Commission will organise a public hearing in the course of 2005 to which all those responding to the Green Paper will be invited.