A proposal for a Regulation dealing with applicable law in divorce
was launched in July 2006 by the European Commission.
Negotiations proceeded on this proposal
until it became clear, in 2008,
that there were insurmountable difficulties
in securing the necessary unanimity for adoption by the Member States.
Shortly thereafter,
a group of Member States resumed the initiative
under the new arrangements for enhanced cooperation
in the Treaty for the Functioning of the European Union
and this led to the adoption of the Rome III Regulation
on this subject.
On and from June 21, 2012,
14 Member States became bound by the uniform rules on applicable law
as regards divorce and legal separation.
These were the original 15 States
which applied to cooperate in this enhanced procedure,
minus Greece which withdrew from the negotiations
and then subsequently gave notice of its intention
to be bound by the Regulation.
Lithuania is also now bound by the Regulation.
The Regulation excludes from material scope
a number of matters of family law,
similar to those excluded from the scope of the Brussels II-a Regulation,
many of which are now dealt with separately in other Regulations.
The Regulation is of universal character,
meaning that the law designated by this Regulation
shall apply whether or not it is the law of a Member State
participating in the Regulation.
In terms of the Regulation,
the parties are permitted to make a choice
between any of the following laws:
The law of the State of the habitual residence of the spouses
at the time the agreement to designate the law applicable is concluded;
The law of the State of their last habitual residence,
if one of the spouses is still residing there
at the time the agreement to designate the law applicable is concluded;
The law of the State of the nationality of either of the spouses
at the time the agreement to designate the law applicable is concluded;
Or the law of the <i>forum</i>.
An agreement designating the applicable law
may be concluded and modified at any time,
but at the latest at the time the court is seised.
Also, if the law of the <i>forum</i> so provides,
the spouses may also designate the law applicable
during the course of proceedings.
If they do the designation so made shall be recorded in court
in accordance with the law of the <i>forum</i>.
The material validity of a choice of law
is to be determined under the law which, in terms of the choice made,
would be applicable were the agreement to be valid.
The agreement on the choice of law has to be expressed in writing,
dated and signed by both spouses.
Other additional formal requirements for this type of agreement
may apply depending on the law of the Member State
of habitual residence of the spouses.
Where no choice of law has been made
the following rules shall apply to determine the law applicable,
the law of the State:
Where the spouses are habitually resident
at the time the court is seised;
Or, failing which where the spouses were last habitually resident,
provided that the period of residence did not end more than one year
before the court was seised,
in so far as one of the spouses still resides in that State
at the time the court is seised;
or, failing that of which both spouses are nationals
at the time the court is seised;
or, failing that where the court is seised.
Where the law applicable pursuant to the Regulation
makes no provision for divorce
or does not grant equal access to divorce or legal separation
because of the sex of one of the spouses,
the law of the <i>forum</i> shall apply.
The application of the law of a State refers to the rules of law
in force in that State
other than its rules of private international law.
A court may refuse to apply a provision of the law
designated in accordance with the provisions of the Regulation
only if such application is manifestly incompatible
with public policy of that <i>forum</i>.
The Regulation does not oblige the courts of a Member State
whose law does not provide for divorce
or does not deem a marriage to be valid
for the purposes of divorce proceedings
to pronounce a divorce by virtue of the application of the rules
in the Regulation.
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