International couples who wish to end their marriage will soon be able to choose which EU country's law governs their divorce, under new rules approved on December 15 2010 by the European Parliament and already backed by EU justice ministers on December 3.

The new rules will, for example, allow a Spanish-German couple living in France to agree whether Spanish, German or French law applies to their divorce.

The European Parliament gave its approval to the legislation today by 537 votes to 20, with 80 abstentions.

Preventing a 'rush to court'

International couples (i.e. couples of different nationalities, couples living apart in different EU countries or living together in a country other than their home country) will be allowed to choose which law applies if they separate, so long as it is the law of a country to which they have a close connection (such as habitual residence or nationality). The regulation also stipulates which law is to apply should the spouses fail to agree on a choice.

The new rules aim to prevent a "rush to court" or "divorce shopping", where one spouse rushes to court before the other to exploit advantageous laws in a particular European country. 

No overriding of national laws

However, a member state cannot be required to recognise as marriage, even for the sole purpose of its dissolution, an act that is not considered to be such by the law of that State", said legal affairs committee rapporteur Tadeusz Zwiefka (EPP, PL).

"In the same way, it would be contrary to the principle of subsidiarity to impose on a judge in a member state whose law does not provide for such an act, a requirement to pronounce the divorce", he added.

The text now states clearly that "Nothing in this regulation shall oblige the courts of a participating member state whose law does not provide for divorce or does not deem the marriage in question valid  for the purposes of divorce proceedings, to pronounce a divorce by virtue of the application of this regulation".

What is not covered?

The regulation should apply only to the dissolution or loosening of marriage ties, and the national law determined by the regulation's conflict-of-law rules should apply only to the grounds for divorce and legal separation.

The regulation will not apply to 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 and trusts or successions.

There are around 122 million marriages in the EU, of which about 16 million (13 per cent) are considered "international". There were more than a million divorces in the 27 EU Member States in 2007, of which 140 000 (13 per cent) had an "international" element. The member states with the biggest shares of international divorces in 2007 were Germany (34 000), France (20 500) and the UK (19 500).

A new procedure

The new legislation, which will enter into force in 18 months, was agreed via the "enhanced co-operation procedure" among EU member states.

Fourteen states are so far taking part: Belgium, Bulgaria, Germany, Spain, France, Italy, Latvia, Luxembourg, Hungary, Malta, Austria, Portugal, Romania and Slovenia. Other EU member states may join at any time. This is the first use of this procedure in the history of the EU.