Brussels, 17/07/2006 (Agence Europe) - On Monday, the European Commission adopted two initiatives intended to lift the obstacles currently facing millions of couples living in the EU faced with a divorce and division of their property. Given the rising number of couples of different nationalities and couples living in a Member State other than their State of origin, the Commission first of all proposed a legislation allowing for Union citizens to choose the law governing their divorce and the relevant legal system, and then public consultation in the form of a Green Paper.
The legislative proposal on applicable law and jurisdiction in divorce matters aims to revise the current “Brussels II” regulation of 2003, and to give couples a limited possibility to choose the applicable law and the competent court in divorce proceedings. The choice of court: The couple that decides to divorce by mutual consent may choose the court of their last residence together (if they stayed there at least three years) or the court of the country of which one of the spouses is a national. If the spouses cannot reach agreement on this, the Brussels II criteria will continue to apply. Applicable law: In the case of mutual consent, the law applicable between spouses will be either the law of the State where the couple had their last residence together (if one of the spouses still lives in that State) or the law of the country of which one of the spouses is a national. When there is no decision on the part of the spouses, the proposals sets out clear rules which ensure that the divorce will be governed by a law with which the spouses have a close connection to guarantee legal certainty and prevent ”forum shopping”. If such is the case, the couple will have to choose between the law of the country of usual residence or that of the last residence together (if one of the spouses still lives in that State) or, if necessary, that of the law of nationality (of both spouses) or the law of the court referred to. The Green Paper laying the foundations for this proposal (EUROPE 8895) had shown that an estimated 170,000 “international divorce proceedings take place each year, representing around 16% of all divorces”. Only Malta does not have divorce, and Ireland and Poland have restrictive legislation on divorce. Once the regulation is adopted, the United Kingdom and Ireland may choose to take part or not (opt out/opt in) in its implementation. Denmark will not be a part or be subject to adoption of such a regulation as it does not take part in Council adoption of the measures proposed under Title IV of the Treaty.
The Green Paper on the conflict-of-law rules, competence and recognition of matrimonial regimes mainly deals with the question of legal competence and mutual recognition. It is based on the results of a study commissioned by the Commission, showing that the division of property at the time of divorce often causes practical and legal problems when the spouses are of different nationalities, not living in the same Member State or are owners of goods located in another Member State. The study considers that, in the Union, 2.5 million goods belong to spouses living in another Member State and that these same goods are the subject of around 30,000 to 50,000 succession proceedings per year. In order to take into account the social reality of the EU, where a growing number of couples live together without being married, the Green Paper also looks at the effect of property division from other forms of union and especially registered partnerships. The responses to this Green Paper are expected to result in a Commission initiative to be launched in 2008.