Encyclopedia of Private International Law
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Encyclopedia of Private International Law

Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio

The role and character of Private International Law has changed tremendously over the past decades. With the steady increase of global and regional inter-connectedness the practical significance of the discipline has grown. Equally, so has the number of legislative activities on the national, international and, most importantly, the European level. With a world-class editor team, 500 content items and authorship from almost 200 of the world’s foremost scholars, the Encyclopedia of Private International Law is the definitive reference work in the field. 57 different countries are represented by authors who shed light on the current state of Private International Law around the globe, providing unique insights into the discipline and how it is affected by globalization and increased regional integration. The Encyclopedia consists of three inter-linked pillars, enhanced by sophisticated search and cross-linking functionality. The first pillar consists of A-Z coverage of the scope and substance of Private International Law in the form of 247 entries. The second pillar comprises detailed overviews of the Private International Law regimes of 80 countries. The third pillar presents valuable, and often unique, English language translations of the national codifications and Private International Law provisions of those countries. This invaluable combination represents a powerful research tool and an indispensable reference resource.
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Chapter R.15: Rome III Regulation (divorce)

Patricia Orejudo Prieto de los Mozos

I. Background and objectives

Council Regulation (EU) 1259/2012 of 20 December 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L 343/10 is also known as the Rome III Regulation.

The legal basis for the adoption of this Regulation is art 81 TFEU (Treaty on the Functioning of the European Union (consolidated version), [2012] OJ C 326/47), which develops the means to achieve the objective of maintaining and developing an area of freedom, security and justice in which the free movement of persons is assured. This provision allows the EU institutions to adopt measures specifically aimed at ensuring compatibility of the rules applicable in the Member States concerning →choice of law, among other measures relating to judicial cooperation in civil matters having cross-border implications, and particularly when necessary for the proper functioning of the Internal Market.

Thus, as with the other ‘Rome’ Regulations, the Rome III Regulation seeks unification of the conflict-of-laws rules (in a given matter) within the EU, as instrumental to the free movement of judgments (in that matter) between the Member States. Indeed, in order to promote free movement of judgments, it was first deemed necessary to establish common rules not only on recognition and enforcement, but also on jurisdiction to adjudicate. The so-called ‘Brussels’ Regulations have been enacted with this aim, as ‘double’ instruments: they settle rules governing the jurisdiction of courts and the recognition and enforcement of decisions. Following that, unification of the rules for determining the applicable law was also considered necessary in the matters covered by the ‘Brussels’ Regulations in order to avoid forum shopping (→Forum (and law) shopping). In fact, as the ‘Brussels’ Regulations endorse (different forms of) →party autonomy on jurisdiction, they trigger the election of the courts of a given Member State may depend on the law that these courts apply to the merits. As the Rome III Regulation itself declares, this instrument ‘should create a clear, comprehensive legal framework in the area of the law applicable to divorce and legal separation in the participating Member States, provide citizens with appropriate outcomes in terms of legal certainty, predictability and flexibility, and prevent a situation from arising where one of the spouses applies for divorce [→Divorce and personal separation] before the other one does in order to ensure that the proceeding is governed by a given law which he or she considers more favourable to his or her own interests’ (Recital (9)). In this sense, the Rome III Regulation is complementary to art 2 →Brussels IIa Regulation (Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000, [2003] OJ L 338/1) (→Brussels IIa Regulation). However, the result does not fully satisfy this objective, having regard to its limited substantial (see section II. below) and territorial scope.

Indeed, the Rome III Regulation is not binding on the entire EU, but rather is an enhanced cooperation Regulation; in fact, it is the first such enhanced cooperation Regulation in p. 1575the history of the EU. The reason is that an agreement on the Regulation proposed by the Commission (Proposal of the Commission of 17 July 2006 (Commission, ‘Proposal for a Council Regulation amending Regulation (EC) No 2201/2003 as regards jurisdiction and introducing new rules concerning applicable law in matrimonial matters’ COM(2006) 399 final), elaborated after a public consultation on the Green Paper on applicable law and jurisdiction in divorce matters (COM(2005) 82 final) also adopted by the Commission on 14 March 2005) was not possible within the Council. The difficulties were considered insurmountable and accordingly, in the light of the lack of agreement and the conviction that unanimity would be impossible, certain Member States decided to address a request to the Commission, indicating their intention to establish enhanced cooperation among themselves. This cooperation was authorized by the Council on 20 July 2010 (Council Decision 2010/405/EU of 12 July 2010 authorising enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L 189/12), and the Rome III Regulation was adopted five months later. Since then, some Member States have decided to participate in the Regulation, while others have not. Participation is open to all at any time, but while some Member States apply other domestic or conventional instruments, the Rome III Regulation is binding in its entirety and directly applicable only in the participating Member States.

II. Scope of application

For the Rome III Regulation to be applicable, it is necessary that the situation involves any international element other than the mere fact that the parties have designated a foreign law as the law applicable to their divorce or legal separation, according to the choice that the Regulation allows (see section III.1. below). But the spatial application of the instrument does not depend on the countries that the situation is related to. The Rome III Regulation is an instrument of universal application. When art 4 states that ‘the law designated by this Regulation shall apply whether or not it is the law of a participating Member State’, it means that the Regulation applies without any condition of →reciprocity and independently of the links of the situation to any particular state. The Regulation is applicable in every participating Member State to determine the law applicable to the divorce or legal separation of any marriage, without regard to the →nationality, domicile or habitual residence (→Domicile, habitual residence and establishment) of the spouses, the place of celebration of the marriage, or the law under which the marriage was celebrated, and, of course, regardless of the law applicable to the divorce or legal separation according to the Regulation, ie whether or not it is the law of a participating Member State. Thus, if the divorce or the legal separation is brought before the competent court of a participating Member State (according to the Brussels IIa Regulation), the law applicable to the merits has to be determined according to the Rome III Regulation in every situation; also, for instance, when the spouses, being US citizens (or Chilean or Chinese), celebrated the marriage in their country of origin, according to the law of a state of the →USA (or →Chile or →China). The fact that this Regulation has a universal character is as essential to achieve the conflictual unification pursued (at least between the participating Member States) as it is also fundamental for this aim to exclude →renvoi (art 11) and to limit the applicability of the →public policy clause to the situations where the application of the foreign law designated by the Regulation ‘is manifestly incompatible with the public policy of the forum’ (art 12, emphasis added). The inconveniences for an effective unification of the conflict-of-laws solutions converge with the limits on the above-mentioned territorial scope and also on the substantive scope.

Even if the Regulation should be consistent regarding its substantive scope with the Brussels IIa Regulation, there is a paramount difference between them. The Brussels IIa Regulation regulates the jurisdiction as well as the recognition and enforcement of decisions in matters of divorce, legal separation and marriage annulment. However, the Rome III Regulation only applies to divorce and legal separation of spouses (including →same-sex marriages, but not registered partnerships), whereas the annulment of a marriage is expressly excluded according to art 1(2)(c). This asymmetry in the treatment of the matter is not justified. Whereas this Regulation aims at preventing a ‘race to the court’ and eliminating the legal uncertainty caused by the lack of uniform solutions as to the law applicable (see reference above), these aims are equally pertinent p. 1576to claims for legal separation, divorce and annulment of a marriage. Indeed, none of the justifications given for excluding the regulation of annulment of marriage is convincing. First, if the problem is that the Rome III Regulation allows for party autonomy, and if this solution is only convenient for legal separation and divorce, it would have sufficed to develop a different, specific conflict-of-laws rule for annulment. Second, it is also irrelevant that in some Member States the annulment of marriage is unknown, as legal separation is also unknown in others, and, as said, it is included within the scope of the Rome III Regulation. Nor is it satisfactory that the Rome III Regulation provides no rules on the celebration of marriage, because nothing would prevent each Member State from retaining its own rules on the celebration, even if these rules are different from the rules on annulment. In the light of the differences among the various Member States (and participating Member States) regarding the very concept of →marriage, unification of the rules on the law applicable to the annulment of marriage was arguably even more necessary than of the rules for divorce or legal separation. Indeed, only specific rules could prevent the courts of a Member State (for instance, →Italy) from declaring the nullity of a marriage validly celebrated in another Member State (for example, a Spanish same-sex marriage) by means of a judgment that has to be recognized (except for the application of the public policy clause) under the Brussels IIa Regulation in the Member State where the marriage was lawfully celebrated and is perfectly valid.

Other matters expressly excluded by art 1(2) Rome III Regulation are: (i) the legal capacity of natural persons (→Capacity and emancipation); (ii) the existence, validity and recognition of a →marriage; (iii) the name of the spouse; (iv) the property consequences of the marriage; (v) parental responsibility; (vi) →maintenance obligations; and (vii) →trust or →successions.

As to the kind of conflicts of laws that the Rome III Regulation envisages, it is worth mentioning that, in the participating Member States in which different systems of law or sets of rules apply to divorce or legal separation, the Regulation is not compulsorily applicable to internal conflicts of law (art 16).

As to its temporal scope of application, the general rule states that the Rome III Regulation has been applicable to legal proceedings instituted before a court (according to art 1(3), a ‘court’ can be either a judicial or an administrative body) as from 21 June 2012. However, when the parties have concluded an agreement regarding the law applicable to the divorce or the legal separation before this date, the Regulation would also apply in order to give effect to the agreement, provided it complies with arts 6 and 7 (art 18(1)). If the court has been seised before the date mentioned, the validity and enforceability of the agreement are subject to the law of the forum (art 18(2)).

Finally, as to the relationship with international conventions which lay down conflict-of-laws rules relating to divorce or legal separation, should a convention obligate the participating Member State of the forum, it would apply instead of the Rome III Regulation only if the participating Member State was already party to the convention before the Regulation entered into force (art 19(1)), and whenever the convention’s contracting states are not exclusively participating Member States (art 19(2)).

III. Conflict-of-laws rules

1. Party autonomy

A basic principle of the Rome III Regulation is the informed choice of the parties. Being aware of the legal and social implications of the application of a given law to the divorce or the legal separation, the spouses would attain a higher degree of certainty and better access to justice by means of their agreement to apply such law (Recitals (18) and (19)). Thus, the two spouses have the possibility of agreeing on the law applicable to their divorce or legal separation (art 5). The agreement is subject to limits as to the laws that can be chosen; it must comply with certain substantive and formal requirements, and there might also be constraints on the moment when the choice has to be made.

The choice of the law applicable to the divorce or the legal separation is limited to a law which has a particular connection with the spouses. Only four laws can alternatively be designated (art 5): either the law of the state where the spouses are habitually resident at the time that the agreement is concluded; or the law of the state where the spouses were last habitually resident, insofar as one of them still resides there at the time that the agreement is concluded; or the law of the state of nationality of either spouse at the time that the agreement is concluded; or the law of the forum.

p. 1577Second, the validity of the agreement is subject to requirements as to the substance and to the form. The law which would govern the agreement under the Regulation if the agreement were valid is the law that would apply to its existence and substantial validity (art 6(1)). This means that the law designated in the agreement as the law applicable to the divorce or legal separation is the law applicable to the existence and validity of the agreement. But, as the conduct of one of the spouses may have a given effect according to the chosen law (such as their silence may be equivalent to acceptance, so that the agreement exists because they did not expressly reject the offer), it would not be reasonable to infer the same legal consequence according to the law of that spouse’s country of residence (where, for instance, silence never amounts to acceptance), it is possible for that spouse to rely upon this law in order to reject the said effect (art 6(2)).

As to the formal validity, there are minimum requirements settled by the Regulation: the agreement must be expressed in writing (including electronic means, as long as they provide a durable record of the agreement), dated and signed by both spouses (art 7). These requirements are conceived as safeguards to ensure that spouses are aware of both the choice and its implications. But additional formal requirements (→Formal requirements and validity), such as the agreement being formalized in a public deed, may also be applicable, depending on the spouses’ place of residence. These additional requirements might be the additional requirements settled (if any) in the law of the participating Member States where the spouses have their common habitual residence at the time that the agreement is concluded (art 7(2)); or the law of (just) one of the participating Member States where the spouses have their habitual residence at the time that the agreement is concluded if they are habitually resident in a different participating Member State (art 7(3)); or the law of the participating Member State where one of the spouses has their habitual residence at the time that the agreement is concluded if the other is not resident in a participating Member State (art 7(4)). As a result, if both spouses have their habitual residence in a country other than a participating Member State, the only formal requirements applicable to their agreement are the said minimum requirements settled by the Rome III Regulation. However, in the event that the choice of the law is made during the course of the proceedings, it is sufficient that it is recorded in court in accordance with the law of the forum.

Finally, the Regulation allows that the spouses come to an agreement, and also modify the agreement already made, at any time before the completion of the application (art 5(2)). But the possibility of also concluding or modifying the agreement during the course of the proceedings depends on the law of the forum (art 5(3)). The possibility of making or modifying the agreement once the court has already been seised depends on the law of the participating Member States where the divorce or legal separation is sought. Thus, the uniform regulation of the agreement is also defective in this sense. As a result, there is not only legal uncertainty as to the immutable nature of any agreement, but also a possible ground for a particular type of forum shopping in that the couple could apply before the court of given participating Member States (or a Member State) solely because in that state, said possibility of amendment is granted (amendment is permissible in that state).

2. The law applicable in the absence of choice

a) Conflict-of-laws rules

Where there is no (valid) agreement between the spouses as to the law applicable, this law is determined according to the objective conflict-of-laws rules settled by the Rome III Regulation. There is a general rule (art 8) and a special rule for the conversion of legal separation into divorce (art 9).

The general rule establishes a scale of successive →connecting factors based on the existence of a close connection between the spouses and the law concerned. In the first place, the law applicable to the divorce or the legal separation is the law of the state where the spouses are habitually resident at the time that the court is seised. Failing that, the law of the state where the spouses were last habitually resident applies, provided that the period of residence did not end more than one year before the court was seised, and provided that one of the spouses still resides in that state at the time that the court is seised. Failing that, the law applies of the state of which both spouses are nationals at the time the court is seised. Failing that, the law of the forum applies.

The special rule is settled for conversion of legal separation into divorce, which is applicable only where there is no valid agreement p. 1578between the spouses concerning the law applicable to the conversion. According to this rule, if the spouses are legally separated, the conversion of the legal separation into divorce is governed by the law which was applied to the legal separation, provided that the law provides for such conversion (art 9(1)). This continuity aims at promoting predictability for the parties and increasing legal certainty. Where the law applied to the legal separation does not provide for the conversion of legal separation into divorce, the law applicable will be determined according to the general rule (art 9(2)).

b) Rules on the application of the conflict-of-laws rules

The operation of the connecting factors employed by the Rome III Regulation may cause some difficulties. The connecting factor ‘habitual residence’, being of a factual nature, is intended to pose few problems as to its determination in given situations, although in reality it may at times be extremely difficult to determine the habitual residence of a couple in the context of an international family conflict. But the Regulation pays particular attention to the connecting factor ‘nationality’ of the spouses. Recital (22) envisages the situation where the spouses have multiple nationalities and it asserts that the solution (which nationality is to prevail) is left to national laws, but in full observance of the general principles of the EU. Thus, the national solutions have to be consistent with the ECJ doctrine on the application of the state conflict-of-law rules in cases of multiple nationalities. This application of the ECJ case-law would be reaffirmed having regard to the said necessity that the application of the terms of the Rome III Regulation are consistent with the Brussels IIa Regulation (Recital (10)). Thus, on the one hand, the ECJ has recognized the possibility for the individuals who have the nationality of two Member States to choose the application of the law of one of the Member States in rulings where the application of the national solutions to the cases of multiple nationalities was tested, as in Case C-148/02 Carlos Garcia Avello v Belgian State [2003] ECR I-11613 and Case C-353/06 Stefan Grunkin and Dorothee Regina Paul [2008] ECR I-7639. On the other hand, this impossibility of solving the issue by means of the application of the more effective nationality, contrary to the parties’ will, has also been asserted in a case where the ECJ was asked to give a ruling on the interpretation of the Brussels IIa Regulation (Case C-168/08 Hadadi v Hadadi [2009] ECR I-6871). Thus, if the spouses choose the law of a given common nationality, this is the law that the participating Member State courts have to apply, as they are not allowed to solve the issue of the double nationality by means of the application of a divergent national solution, such as the principle of the more effective nationality.

The Rome III Regulation also establishes a rule for the cases where the state whose law is applicable according to the Regulation is a state which comprises several territorial units concerning legal separation or divorce (such as the UK, the USA or Mexico), and another rule for the situation where the state whose law is applicable has two or more systems of law, or sets of rules applicable to different categories of persons concerning legal separation or divorce (such as →Greece, →Israel or →India). If the state whose law is applicable comprises several territorial units, each of which has its own system of law, any reference made to the law of that state is to be construed as referring to the law in force in the relevant territorial unit (art 14). Thus, for instance, if the spouses have no common habitual residence in a given state, but one of them still resides in the state where the spouses were last habitually resident, and in this state there are several territorial units with different laws (such as in the UK), the law applicable absent a choice (art 8) is the law of the territorial unit where they were last habitually resident (England, Wales, Scotland or Northern Ireland). The same solution (ie direct reference to the territorial unit) is employed whenever the connecting factor is ‘habitual residence’. For instance, in the example above, according to art 7, the spouses might have agreed that the law applicable to the legal separation or divorce is the law of the territory where the spouses were habitually resident (for instance, Scotland). But this ‘direct’ solution does not work where the connecting factor employed is ‘nationality’. Returning to the example, if one of the spouses is a US citizen, art 7 confers on them the possibility of choosing the law of the USA, but a US law on legal separation or divorce does not exist, and the reference to nationality cannot be construed as referring to the law in force in a particular territory or state of the USA, as there is no ‘nationality’ of a sister state. Thus, a possible (‘indirect’) solution, which is the solution settled by the Rome III Regulation, consists in applying the rules established in this state (the p. 1579USA) for the resolution of internal conflicts of laws. But, as it is not unusual that there is not a single state set of rules of internal conflicts of laws (in the USA, each sister state has its own conflict-of-laws rules, applicable to both interstate and international situations), a closing solution is needed. This solution is established in art 7(c) Rome III Regulation, which declares that absent such rules, the law applicable is the law of the territorial unit chosen by the parties, or the law with the closest connection to the spouse or spouses. Thus, in the example, the spouses have the possibility of agreeing that the law applicable to their legal separation or divorce is the law of one of the sister states. This ‘indirect’ solution is also given to the situation where the applicable law, according to the Regulation, is the law of a state where there are two or more laws on legal separation or divorce, whose application depends on a given category of person (eg this person’s creed or religion). Thus, if the state has specific rules to determine the personal law which is to be applied to the particular person, the solution will come from the application of these interpersonal conflict-of-laws rules (art 15). In their absence, the law applicable will be the law with which the spouse or spouses have the closest relationship.

There are two possible reasons not to apply the law determined according to the Rome III Regulation. The first is that the applicable law makes no provision for divorce or does not grant one of the spouses equal access to divorce or legal separation on the grounds of his or her sex. In this case, the court seised will apply its own law, without prejudice to the public policy clause (art 10). The other reason is, indeed, recognized in the public policy clause (art 12): the application of a provision of a foreign law will be disregarded where such application would be manifestly incompatible with the public policy of the forum. However, the clause cannot be applied where disregarding the applicable law would be contrary to the EU Charter of Fundamental Rights (Charter of Fundamental Rights of the European Union of 18 December 2000, [2000] OJ C 364/1 (consolidated version 2012/C 326/02, [2012] OJ C 326/391)) and in particular its art 21, which prohibits all forms of discrimination.

Finally, in order to achieve a higher degree of unification of the conflict-of-laws rules, →renvoi is excluded (art 11). This means that the reference to the law designated by the Regulation (either by means of an agreement on the law applicable to the divorce or the legal separation or by means of the rule applicable in the absence of a choice) is a reference to the substantive provisions of such law. Accordingly, it is not possible to apply the law of the forum or the law of another state to the divorce or the legal separation by means of the application of the conflict-of-laws rules of the state whose law is applicable.

3. The other relevant rule: obstacle to the principle of mutual recognition

‘The existence, validity or recognition of a marriage’ is one of the issues excluded from the scope of the Rome III Regulation. Accordingly, the reiteration may come as a surprise that regarding the recognition of marriage implies the provision of art 13, under which no court of a participating Member State is bound to recognize the validity of the marriage, in order to decide on the divorce or the legal separation (the text indicates nothing about the legal separation, but Recital (26) also refers to it in this context). Thus, the court of the participating Member State seised may apply the private international law rules of the forum, according to which the marriage may be non-existent or invalid. But this rule has its rationale. Through its enactment, the possibility of a future (jurisdictional) extension of the principle of mutual recognition to the issue of the validity of marriages celebrated in other Member States has been blocked. Indeed, the application of this principle would have amounted to giving prevalence to the most permissive laws; it would have obliged every Member State to recognize the validity of marriages celebrated under the law of any other Member State. On the contrary, the more restrictive standard has been adopted. The Rome III Regulation protects the participating Member States reluctant not only to legalize same-sex marriages, but also to acknowledge their validity when celebrated according to the law of another Member State.

Article 13 also states that if the law of the participating Member State whose courts have been seised does not have the institution of divorce, such courts should not be obliged to pronounce a divorce by virtue of the Regulation. This provision was called the ‘Malta provision’, because Malta was the only Member State where divorce was not legal at the time that the Regulation was approved. Thus, by establishing this rule, Malta would not be compelled to introduce divorce into its substantive law by p. 1580virtue of an EU instrument. However, as Malta has already recognized the possibility of dissolution of marriages, the provision has no practical application now.

Literature

  • Nynke A Baarsma, ‘European Choice of Law on Divorce (Rome III): Where Did it Go Wrong?’ (2009) 27 NIPR 9;

  • Katarina Boele-Woelki, ‘For Better or for Worse: The Europanization of International Divorce Law’ (2010) 2 YbPIL 11;

  • Sabine Courneloup (ed), Droit Européen du divorce. European Divorce Law, Université de Bourgogne, Travaux du CREDIMI, vol 39 (LexisNexis Litec 2013);

  • Aude Fiorini, ‘Rome III – Un modèle a suivre?’ in Mélina Douchy-Oudot and Emmanuel Guinchard (eds), La Justicie civil européenne en marche (Dalloz 2012) 79;

  • Pietro Franzina, ‘The Law Applicable to Divorce and Legal Separation under Regulation (EU) Nº 1259/2010 of 10 December’ (2011) 3 CTL 2;

  • Cristina González Beilfuss, ‘The Unification of Private International Law in Europe: A Success History?’ in Katharina Boele-Woelki, Jo Miles and Jens Scherpe (eds), The Future of Family Property in Europe (Intersentia 2011) 329;

  • Patricia Orejudo Prieto de los Mozos, ‘La nueva regulación de la ley aplicable a la separación judicial y al divorcio: aplicación del Reglamento Roma III en España’ (2012) 7913 La Ley 1;

  • Steve Peters, ‘Divorce, European Style: The First Authorisation of Enhanced Cooperation’ (2010) 6 European Constitutional Law Review 339.