To make it clear from the outset, the European Commission is not trying to create a standard EU-wide divorce system. Apart from it not having the power to try to do so, the wide divergence of divorce laws among EU countries probably would make the task impossible.

What it is trying to do is to harmonise the rules on disputes about in which country to seek a divorce order. One of many complications in the issue is that most member states do not allow a couple to choose the law that will apply to their divorce.

Further, the risk that the EC wants to avoid is a better-informed partner getting a more advantageous deal by choosing a court in a country where his or her individual interests could be better-served.

The differences
To say that there are divergences among EU states regarding divorce is an understatement. Some countries take a "liberal" fast-track approach, such as Sweden. Countries differ in the grounds that their courts will accept when a divorce is requested. Some countries, for example Poland and Ireland where Roman Catholicism is a strong force, do not make divorce easy while Malta does not allow divorce at all.

Some countries have stayed away from the process of a harmonised approach to divorce, notably Sweden and Denmark. Further, some EU countries recognise same-sex unions in a form legally equivalent to marriage but others do not - and in some cases, given that this is a relatively new area of law, divorce is still a relatively murky area, as in the UK where some same-sex civil partnerships have ended in separation.

Rates of "international divorces", as EU documentation terms divorces between nationals of EU states, are currently highest in Estonia at 78 per cent, close to 50 per cent in Luxembourg, the Netherlands and Sweden, and 25 per cent in Belgium, Germany, Finland and Portugal.

The background
The process of a harmonised approach to divorces within the EU dates back several years, and some progress has been made. Part of the reason is that as citizens of EU states become more mobile within the Union, there is an increasingly higher rate of intermarriage among people of different EU nationalities, which concomitantly also means an increasing rate of divorces among such couples.

A regulation approved by the EU Council of Ministers took effect in March 2005 on mutual recognition and enforcement of decisions in divorce matters and matters of parental responsibility. This updated a regulation from March 2001 on judicial co-operation on such matters.

The new regulation (not applicable in Denmark) does not determine which national law a court must apply, although in some cases the courts of one member state must apply the laws of another state, depending on the national laws of the relevant state.

According to the regulation, courts have jurisdiction to a divorce ruling under six circumstances. These are, in the member state in which the spouses habitually reside; in the member state in which the respondent habitually resides; if the spouses no longer live in the same member state, in the member state in which they habitually resided last, provided that one of them still lives there; in the case of a joint application, in the member state in which either of the spouses resides; in some circumstances, in the member state in which the applicant habitually resides; and in the member state of which the spouses are nationals.

Should a case be brought before the courts of more than one member state, the court before which the case was first brought is considered to have jurisdiction. If the same case is subsequently put to another court, it should decline it.

The same regulation says that a divorce granted in one member state shall be automatically recognised by the other member states without any special procedures. This, however, can be challenged in some cases, for example where a divorce contradicts public policy.

`Enhanced co-operation'
Further developments have taken place this year.

In January 2008, at a meeting in Slovenia, EU justice ministers sought to come up with common rules to decide in which country a case should be heard if a couple failed to reach agreement on the issue.

The attempt was opposed by Sweden, to the apparent frustration of then-EU justice commissioner Franco Frattini, who told a news conference: "We need harmonised provisions to give legal certainty. It is simply impossible that one or the other in the couple decides who should be the competent judge or which law should be applied."
Matters advanced in July, when in frustration at lack of progress on the question of harmonising laws and the choice of courts, nine EU countries announced that they had agreed that they would, among themselves, harmonise their laws. The principle is known as "enhanced co-operation".

The countries that agreed were Austria, France, Greece, Hungary, Italy, Luxembourg, Romania, Slovenia and Spain. Media reports suggested that other countries, said to include Belgium, Germany, Lithuania, Portugal and Slovakia, would later join the group. However, there were strong indications that at least two other countries would not be on board for any European-level attempt at reducing disputes about in which country divorce proceedings should take place - these countries were the UK and Ireland.

In Parliament
The move to reduce the number of disputes about in which courts divorce cases should be heard reached the European Parliament in October 2008.

At the heart of the matter was a report by German socialist Evelyne Gebhardt which sought to come up with guidelines to clarify the question of jurisdiction.

It was never going to be easy. European Justice, Freedom and Security Commissioner Jacques Barrot voiced the concerns of many by saying as many member states should be got on board as possible to avoid the EU "fragmenting" over a very difficult family issue.

As noted, the EU cannot legislate on matters of family law, but it can produce guidelines for the harmonisation of legislation which takes effect if all states adopt it.

The Gebhardt report said that after divorce proceedings are brought before the court of a member state, the law applicable is determined by reference to that state's rules on conflicts of jurisdiction.

"These national laws on conflicts of jurisdiction turn out to be extremely diverse," the report said.

The report urged that "comprehensive, reliable information" be made available to the signatories of an agreement on jurisdiction before it is signed.

Gebhardt noted that it was surprising that among the criteria for choice proposed for deciding on the law that is to be applicable, the law of the state in which the marriage contract was signed was not included.

"Even though the member states do not all have similar laws as regards the conclusion of marriage contracts, nationals of states where such a possibility is provided for could be given the option of referring to the law of that state when divorcing, which would give a great advantage in terms of consistency and predictability."

She emphasised again the importance of providing the spouses with precise, comprehensive information regarding the consequences of their choice of the law applicable for divorce.

Gebhardt noted that in some countries, including Belgium, Germany and France, the effects of a divorce have to be considered and settled as the same time as the divorce, including issues such as alimony, division of goods held in common, attribution of the family home and child maintenance.

"Making an informed choice is very important for the economically weaker spouse, especially when the choice of law applicable involves the loss of advantages such as the possibility under German law, for example, of sharing the pension rights acquired by the two spouses."

Gebhardt's report was approved by the European Parliament's Civil Liberties Committee, but when it reached the European Parliament, amendments were proposed emphasising the need to inform couples of the practical repercussions of their choices, and seeking to ensure that they receive full, reliable information before signing any document.

MEPs suggested that an information system about the issue be put up on the internet.

As the attempt to resolve the traumatic way made its way through the European institutions, although with the certainty that some countries are highly unlikely to subscribe to the attempt, the saga recalled the words of French justice minister Rachida Dati, who presided over the meeting of her counterparts when they discussed the question in January 2008: "There are 170 000 reasons for us to make progress. This is a big subject that concerns the public at large in Europe."