The EU Ministers of Justice today agreed upon guiding principles which will form the basis of further deliberations on an EU Regulation on the jurisdiction and the applicable law in matrimonial matters (so-called Rome III Regulation).
Council President and Federal Minister of Justice Brigitte Zypries said, “With the Rome III Regulation, we hope to achieve having courts in Europe always apply the same law to a divorce – independently of the Member State in which the couple files for divorce. We also wish to give spouses the opportunity to choose the court with jurisdiction in a Member State and the law pursuant to which they want to divorce. Until now, such a choice has not existed in the legal systems of most Member States. Spouses are to be able to choose the law with which they have a close connection. This might be the law of the state in which they reside or the law of the state in which they previously lived together if either of them still lives there. It can also be the law of the state of which one of the two is a national, or the law which applies at the place where the divorce is filed. The experts at the working level will continue deliberations regarding which criteria are to be applied, and in which order,” added Ms. Zypries.
Currently, each Member State applies its own rules as to which law is to be applied to a divorce when one spouse has a different nationality or when the couple lives abroad. This means that a German-Dutch couple who live in Germany could be divorced in Germany pursuant to German law; but if the Dutch spouse files for divorce before a Dutch court, Dutch law could be applied to the same divorce case.
Therefore, the EU Commission has submitted a proposal for a Regulation which provides uniform rules for determining the law applicable to divorces with an international dimension. It would have every court in an EU Member State decide according to the same rules as to which law is applicable to a divorce. This will result in more legal certainty for the affected spouses.
Also, within certain boundaries, spouses are to be able to choose both the court with jurisdiction in a Member State as well as the applicable law. This will enhance the parties’ autonomy, allowing Europe’s citizens increased flexibility and freedom to find appropriate solutions for their family-law relationships and better meet the challenges of modern life.
A large majority of Member States support the goal of the proposed Regulation, the details of which must be further deliberated; this particularly includes the issue of under which preconditions and to what extent the courts of the Member States will be able to apply foreign law. There is agreement that rules of other legal systems which contradict the public order of the state of the forum will not be applied because they violate the so-called ordre public.
Said Ms. Zypries, “We wish to attain more legal certainty and flexibility for families in Europe. In this process, we are taking very seriously the objections against the Regulation proposal on the part of some Member States. The principles agreed upon today will provide extremely important guidance for our further negotiations.”
