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Divorce and MaintenanceDivorce is available in all European jurisdictions. The financial consequences attached to a
divorce (or dissolution of a registered partnership) vary considerably across Europe. During
this lecture divorce and maintenance obligations are the central issues. The EU instruments
in matters of divorce and maintenance developed by the EU and EU rules on the applicable
law to divorce will be discussed.
Literature and materials
J. M. Scherpe, European Family Law, Volume III, Chapters 2
and 5
Please bring the Reader to the lecture. Reference
will be made to:
• Council Regulation (EC) No 2201/2003 of 27 November 2003 (Brussels IIbis or Brussels
IIa)
• Council Regulation (EU) No 1259/2010 of 20 December 2010 implementing enhanced
cooperation in the area of the law applicable to divorce and legal separation (Rome III
Regulation)
• Council Regulation (EC) No 4/2009 of 18 December 2008 on jurisdiction, applicable law,
recognition and enforcement of decisions and cooperation in matters relating to maintenance
obligations (Maintenance Regulation)
Questions
1. Which rules govern the recognition of a divorce granted by a
court in another EU Member State?
Brussel IIbis. Testing the scope;
1. Temporal scope: is the instrument in force and applicable to the facts?
→ Brussel IIbis: is in force, art. 72 Brussel IIbis
2. Formal/geographical scope: Are the States bound by the rules? NB check priority
→ Brussel IIbis; all 27 EU Member States except for Denmark (Ireland opt
in) Preambule 30 en 31
3. Material scope – Is the subject matter of the dispute/case covered by the instrument?
NB note the exceptions!
→ Brussel IIbis applies to divorce, art. 1(1)(a) Brussel IIbis.
, 2. Which rules govern the recognition of a divorce granted by a
court in another State, which is not an EU Member State?
The national PIL law of that country.
3. Describe the rules on international jurisdiction in Brussels
IIbis. In which cases does this Regulation apply?
In case of a connection, a habitually resident or nationality with a Member State as can be
found in art. 3 Brussel IIbis. Further additional jurisdiction rules can be found in the arts. 4-7
Brussel IIbis.
Note: art. 3 Brussel IIbis has no hierarchy, multiple courts can have jurisdiction and it
is the one that is seized first that has the final jurisdiction.
It can rely on either or dual nationalities, Hadadi v Hadadi.
Habitually resident can not easily be established, you need to look at the bigger
picture.
4. Describe the choice of law (applicable law) system of the
Rome III Regulation. In which cases does this Regulation
apply?
Depending on the fact if there is an agreement between the spouses, art. 5 Rome III
Regulation or no agreement, art. 8 Rome III Regulation. It has no choices, it only gives one
option because this time the applicable law question is asked by the court itself. In case of
the jurisdiction question, that is for a spouse to answer and therefore they have freedom to
choose. See my practical guide on divorce.
5. Why were some Member States reluctant to participate in the
Rome III Regulation? Distinguish between legal arguments and
practical/political arguments.
Legal instruments are the use of law that is not recognised by the domestic law. Maybe even
recognizing stuff that is prohibited in the Member State that has to use the applicable law.
Political arguments could be bad diplomatic bounds and judge a country as a whole.
Therefore there also is, apart from not being a Member State of Rome III Regulation, the
option to use the exception of Public Policy, art. 12 Rome III Regulation.
6. Describe the rules on international jurisdiction, applicable law
and recognition and enforcement in the Maintenance
Regulation. In which cases does this Regulation apply?
See the practical guide.
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