Family Law

EU Member States Attack Divorce Conflict of Laws Scheme

16.11.2006 - 09:30 CET | By Teresa Küchler
EUOBSERVER / BRUSSELS - EU member states are lining up to attack a European Commission proposal to establish common rules for cross-border divorces which could - in an extreme scenario - see Iranian divorce rules applied in European courts in future.

The proposal - called Rome III and presented last July - sets out which national legislation should apply in the case of a couple of two nationalities or a couple living in their non-native country, such as an Irish and Finnish pair of EU civil servants living in Brussels.

The commission argues it will give clarity and prevent disputes related to "shopping" for jurisdictions, so that if the couple in the example divorced but could not agree whether to do it under Irish, Finnish or Belgian law, Rome III would impose the law of the country where they live or have the strongest ties to.

In cases involving non-EU citizens or non-EU states, Rome III would also favour a legislature to which both spouses have a strong connection, with a Swedish justice ministry document plotting a potential scenario in which European courts have to deal with a dispute under Iranian law.

The Swedish view of Rome III imagines a Swedish woman who marries an Iranian man in Sweden and emigrates to Iran but after several years decides to leave both her spouse and his country and go home. "The proposal means that Iranian divorce law would be applied by the Swedish court," the justice ministry study states.

The strong difference in marital law worldwide - with some countries forbidding divorce or propagating a culture of arranged marriages - turns the universal dimension of Rome III into a legal and political minefield in the predominantly liberal democracies of Europe, legal experts say.

"Forced marriage, where a spouse - most probably the woman- cannot get out of the marriage, is one of the topics that is bound to come up for discussion", one lawyer told EUobserver.

Even within the EU, divorce laws differ widely - it is illegal in Roman Catholic Malta but quick and easy in Sweden, while other member states require different lengths of time of separation prior to divorce or different "bases of fault" on which to legally split.

Malta has stated it will oppose any proposal that would oblige Maltese courts to apply foreign laws to circumvent its ban on divorce.

"If Ireland were to adopt and implement this measure, this would allow EU nationals resident in Ireland to obtain a divorce in our courts on substantially different and less onerous grounds than that provided for in our constitution", the Irish justice ministry recently said, planning an opt-out from Rome III.

Meanwhile, some EU member states such as the UK dislike Rome III because it encroaches into the national domain of family law and could see divorce cases drag out in time as UK courts struggle to find experts on foreign jurisdictions in Britain's increasingly multi-ethnic society.

"It [Rome III] would sadly not bring about the benefits it was intended to bring about, at least not in the UK," a UK diplomat said, confirming that the UK has also requested an opt-out from the bill.

From International Family Law posted 2006-11-17.