The Law Applicable to Divorce as Test Ground for Enhanced Cooperation

• Author: Jan‐Jaap Kuipers
• Date: 01 March 2012
• Published date: 01 March 2012
• DOI: http://doi.org/10.1111/j.1468-0386.2011.00594.x

eulj_594201..229

The Law Applicable to Divorce as Test

Ground for Enhanced Cooperation

Jan-Jaap Kuipers*

Abstract: Enhanced cooperation was introduced in the Treaty of Amsterdam (1997).

Despite a lot of academic ink being spilled, the instrument had, until recently, never been

applied in practice. In June 2010, the Council reached consensus on authorising a group

of Member States to pursue, in the framework of enhanced cooperation, common rules in

the area of the law applicable to divorce. The present paper critically analyses this f‌irst

precedent. For that purpose, the background to the policy area will be explored. Subse-

quently, the desirability of enhanced cooperation shall be assessed. Finally, the content of

Rome III, and its effects upon Member States not participating in the initiative, will be

analysed. The paper will attempt to formulate an answer to the question whether enhanced

cooperation should be the new approach to harmonisation of family-related Private

International Law.

I Introduction

The creation of an area of freedom, security and justice has as one of its main objectives

the promotion of mobility of citizens between the Member States. European citizens

will not only perform economic activities in another Member State but also develop a

personal life there. The increasing circulation of European citizens will inherently result

in cross-border romances, and perhaps eventually, marriage. The Commission has

estimated that within the Union, roughly 350 000 international marriages are con-

cluded every year.1The sun is not always shining. Approximately 170 000 divorces with

an international character are annually pronounced by Union courts.

The possibility and conditions of divorce differ widely between the Member States.

The most stringent is Malta; a divorce is not possible at all. On the other side of the

spectrum is Sweden; under Swedish law, parties do not have to adduce any reasons

to support a divorce claim. A divorce will simply be granted. Both Malta and Sweden

automatically apply their own law to a divorce. The success of an application for

divorce by a Swedish–Maltese couple will, thus, depend on whether the action is

brought in either Maltese or Swedish courts. The Union has until so far not harmonised

the rules that determine the law applicable to a divorce. The Brussels II bis Regulation

only lays down rules concerning the jurisdiction of national courts in divorce matters,

* Assistant Professor European Law, Radboud Universiteit Nijmegen, the Netherlands.

1Study to inform a subsequent Impact Assessment on the Commission proposal on jurisdiction and

applicable law in divorce matters (2006), 28. Available at http://ec.europa.eu/justice_home/news/

consulting_public/divorce_matters/study.pdf, as of 5 July 2010.

European Law Journal, Vol. 18, No. 2, March 2012, pp. 201–229.

© 2012 Blackwell Publishing Ltd., 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

and the recognition and enforcement of divorces pronounced in other Member States,

but remains silent on the question of governing law. The legal uncertainty is nourished

by the fact that Brussels II bis provides for seven alternative grounds of jurisdiction,

creating the potential application of various laws.

From this perspective, it is not surprising that Member States have sought to har-

monise the rules that determine the law applicable to divorce. The Commission’s Green

Paper on applicable law and jurisdiction in divorce matters, therefore, proposed to

remedy the existing shortcomings by introducing uniform conf‌lict of laws rules.2A

proposal to modify the Brussels II bis Regulation and to change its name into the Rome

III Regulation was presented in 2006.3The proposal was criticised on several grounds,

but the core of the problem was that certain Member States were reluctant to the

content of the rules proposed. In line with prevailing tradition in most Member States,

the proposed conf‌lict of laws rules could result in the application of foreign divorce law.

Malta was afraid that Rome III might be used to circumvent the Maltese impossibility

of divorce by applying foreign divorce law in Maltese courts, while Sweden was afraid

that Swedish courts would be obliged to refuse under foreign law an application for

divorce. Given that the national positions are derived from the sanctity of marriage

and, respectively, the fundamental right to divorce, the negotiations became dead-

locked. Nine Member States wished to continue with the Commission’s proposal and

f‌iled a request for enhanced cooperation.

Enhanced cooperation in the area of divorce law is slightly surprising. Enhanced

cooperation was introduced in the Treaty of Amsterdam to allow a ‘two speed Europe.’

Member States that desired to further deepen European integration should not be

slowed down by Member States who were not yet ready. The rules on the law appli-

cable to divorce do not seem to f‌it neatly in this category. From the perspective of PIL,

it is surprising that two other options were hardly considered: the possibility to pursue

common rules within the framework of the Hague Conference on Private International

Law or the use of the passerelle clause introduced by the Lisbon Treaty. In the light

of these two alternatives, the appropriateness of enhanced cooperation in divorce law

will be analysed. Subsequently, the position that the Member States adopted towards

enhanced cooperation will be explored. Finally, it will be analysed whether enhanced

cooperation is likely to fulf‌il the goals as initially pursued by Rome III. What are the

effects of the common rules? However, before analysing the effects of enhanced coop-

eration, it is necessary to address the current situation.

II Current Situation4

The law on divorce differs widely between the Member States. Malta is the only

Member State that does not allow for divorce at all. Finland and Sweden, on the other

hand, have the most liberal divorce law. In fact, the right to divorce is considered to be

a fundamental right. These Member States do not require any ground for divorce, but

a consideration period of six months may be applicable. Some Member States allow for

2Green Paper on applicable law and jurisdiction in divorce matters {SEC(2005) 331}/*COM/2005/0082

f‌inal.

3Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and

introducing rules concerning applicable law in matrimonial matters COM(2006) 399 f‌inal.

4The national data is derived from the European Civil Network. http://ec.europa.eu/civiljustice/divorce/

divorce_ec_en.htm, as of 5 July 2010.

European Law Journal Volume 18

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