EU Proposes New Rules to Simplify Cross-Border Divorces

With more freedom of movement within the European Union have come more cross-border marriages. But not all of these marriages last a lifetime. Each year, up to 170,000 international couples file for divorce in the EU – representing 16 percent of all separations in Europe. In addition to their personal problems, the divorcing couple is also confronted with a myriad of practical and legal problems exacerbated by the lack of any common EU family law.

There are many widely varying legal systems and divorce procedures in the EU's member states. In Ireland, for example, couples must have a four-year separation period before they can divorce, whereas in Finland, a divorce can be obtained in six months. At present, it is often difficult for international couples –where spouses are either of different nationalities, live in different member states, or have the same nationality but live in a member state other than their state of origin – to know which laws apply to their divorce.

Additionally, the current situation can lead to "divorce shopping" where one spouse will "rush to court," said David Davidson, head of the family department at leading London law firm Charles Russell.

"Due to the enormous difference in the financial relief given to spouses in different EU jurisdictions, inevitably, you’re going to have situations where husbands will try to file where wives get less, and wives try to file where wives get more," Davidson said.

"One of the consequences of this is that when a marriage hits rocks, rather than sitting down and talking through their problems and seeking to reconcile or deal with things in an amicable fashion, the couple are compelled by these rules to fire the gun as it were, and start the process of dissolution of marriage in order to achieve a tactical advantage."

Stopping "divorce shopping"

In order to put an end to the practice of divorce shopping, and to lessen the confusion for international couples, the European Commission recently adopted two initiatives. The first seeks new regulations on which laws and jurisdictions are applicable in divorce matters where spouses are of different nationalities. The second initiative launches a public consultation on applicable law, jurisdiction and recognition in matters of property rights of married and unmarried couples.

"These initiatives will simplify life for couples in the EU," said Commissioner for Justice, Liberty and Security Franco Frattini. "They will increase legal certainty and enable couples to know which law will apply to their matrimonial property regime and their divorce. The aim is not to harmonize the national laws on divorce, which are very diverse, but to ensure to ensure legal certainty, flexibility and access to court."

The new regulations would still allow for some degree of divorce shopping, because of "a limited possibility to choose the applicable law and the competent court in divorce proceedings," according to a Commission statement.

"This may be particularly useful in cases of divorce by mutual consent," the statement said.

But in cases where the divorce is contested, the new rules would not allow one partner to "rush to court" in countries permitting a quick divorce.

"The proposal will reduce the incentive to 'rush to court' since the applicable law will be designated on the basis of common rules independently of which court is seized," the commission said.

A mammoth task

Davidson applauded the commission for taking up the thorny issue of international divorces but said there was no way to tell how effective the proposals would be in cutting the confusion.

"It is very much a growing problem and I don’t envy them finding a solution to it," he said. "It is hard enough to achieve a system in any one jurisdiction that is perfect; trying to do this across 25 states seems near impossible."

The European Commission's proposals are being closely monitored by member states with both conservative and liberal laws on divorce.

Ireland and Poland are keen to guard the Catholic values which have led to their restrictive divorce laws, while Malta – the only member state that does not permit divorce -- is studying the text to make sure divorce is not introduced through the back door.

"Some member states wanted to make sure people could not circumvent or undermine national laws," a commission official said. "Concerns were raised in both regards – from those member states with rather restrictive divorce laws but also those with liberal laws."

The proposals will go before the European Parliament for its opinion, but whether or not they come into effect will ultimately be decided by the 25 member states, which must agree unanimously. Britain, Ireland and Denmark have an opt-out clause by which they can refuse to take part in EU policies.