Green Paper on applicable law and jurisdiction in divorce matters {SEC(2005) 331}
Date: 2005-03-14
Institutions: European Commission
Subjects: divorce, judicial cooperation, jurisdiction, matrimonial law

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 14.3.2005 
COM(2005) 82 final 

GREEN PAPER 

on applicable law and jurisdiction in divorce matters 

(presented by the Commission)  

{SEC(2005) 331} 

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GREEN PAPER 

on applicable law and jurisdiction in divorce matters 

The purpose of this Green Paper is to launch a wide-ranging consultation of interested parties 
on the questions of applicable law and jurisdiction in matrimonial matters. The Green Paper 
describes  problems  that  may  arise  under  the  current  situation  and  proposes  a  number  of 
possible solutions. The attached Commission working document provides information on the 
Member States’ substantive, procedural and conflict-of-law rules in divorce matters. 

The Commission invites interested parties to submit comments before 30 September 2005 to 
the following address: 

European Commission 
Directorate-General for Justice, Freedom and Security 
Unit C1 – Civil Justice 
B - 1049 Brussels 
Fax: +32-2/299 64 57 
E-mail: jls-coop-jud-civil@cec.eu.int 

Interested parties are requested to mention explicitly if they do not wish their comments to be 
published on the Commission’s website. 

The Commission plans to organise a public hearing on this subject. All those responding will 
be invited to attend.  

1. 

BACKGROUND 

There  are  currently  no  Community  provisions  on  applicable  law  in  divorce.  Council 
Regulation (EC) No. 1347/20001 (“the Brussels II Regulation”) includes rules on jurisdiction 
and  recognition  in  matrimonial  matters,  but  does  not  comprise rules  on  applicable  law.  The 
entry  into  application  of  Council  Regulation  (EC)  No.  2201/20032  (“the  new  Brussels  II 
Regulation”),  which replaces  the Brussels II  Regulation  as  of  1  March  2005,  will  not  entail 
any  change  in  this  respect,  since  it  takes  over  the  rules  on  matrimonial  matters  from  the 
Brussels II Regulation practically unchanged.  

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Council  Regulation  (EC)  1347/2000  of  29  May  2000  on  jurisdiction  and  the  recognition  and 
enforcement of judgments in matrimonial matters and matters of parental responsibility for children of 
both spouses, OJ L160, 30.06.2000, p. 19. 
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, OJ L 338 of 23.12.2003, p. 1. 

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The European Council in Vienna emphasised in 1998 that the aim of a common judicial area 
is to make life simpler for the citizens, in particular in cases affecting the everyday life of the 
citizens, such as divorce.3 In November 2004, the European Council invited the Commission 
to  present  a  Green  Paper  on  the  conflict-of-law  rules  in  matters  relating  to  divorce  (“Rome 
III”) in 2005.4 

The increasing mobility of citizens within the European Union has resulted in an increasing 
number of “international” marriages where the spouses are of different nationalities, or live in 
different  Member  States  or  live  in  a  Member  State  of  which  they  are  not  nationals.  In  the 
event that an “international” couple decide to divorce, several laws may be invoked. The aim 
of  the  rules  on  applicable  law,  often  referred  to  as  “conflict-of-law  rules”,  is  to  determine 
which of the different laws that will apply. In view of the high number of divorces within the 
European  Union,  applicable  law  and  international  jurisdiction  in  divorce  matters  affect  a 
considerable  number  of  citizens.  As  an  example,  approximately  15  per  cent  of  the  divorces 
pronounced  in  Germany  each  year  (approximately  30.000  couples)  concern  couples  of 
different nationalities.5  

2. 

SHORTCOMINGS OF THE CURRENT SITUATION 

An “international” couple who want to divorce are subject to the jurisdiction rules of the new 
Brussels  II  Regulation,  which  allow  the  spouses  to  choose  between  several  alternative 
grounds  of  jurisdiction  (see  point  3.6  of  the  attached  working  document).  Once  a  divorce 
proceeding is brought before the courts of a Member State, the applicable law is determined 
pursuant  to  the  national  conflict-of-law  rules  of  that  State.  There  are  significant  differences 
between the national conflict-of-law rules (see point 3.4 of the attached working document). 

The combination of different conflict-of-law rules and the current jurisdiction rules may give 
rise to a number of problems in the context of “international” divorces. Apart from the lack of 
legal  certainty  and  flexibility,  the  current  situation  may  also  lead  to  results  that  do  not 
correspond to the legitimate expectations of citizens. Moreover, Community citizens who are 
resident in a third State may face difficulties in finding a competent divorce court and to have 
a divorce judgment issued by a court in a third State recognised in their respective Member 
States of origin. There is finally a risk of “rush to court” under the current situation.  

2.1. 

Lack of legal certainty and predictability for the spouses  

Considering  the  difference between,  and complexity  of, the national conflict-of-law  rules in 
divorce matters, it is often difficult to predict which national law will apply in a given case. 
This is particularly the case in family situations where the spouses have no common habitual 
residence or nationality, but the problem may also arise when couples of the same nationality 
split up and move to different Member States. 

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OJ C19, 23.01,1999, p. 1. 
The Hague Programme: strengthening freedom, security and justice in the European Union, adopted by 
the European Council 4-5 November 2004. 
Source: Statistisches Bundesamt. Deutschland. 

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Example 1: the Portuguese-Italian couple living in different Member States  

A  Portuguese  man  and  an  Italian  woman  get  married  in  Italy.  The  husband  returns 
immediately  to  Portugal  after  the  wedding  for  professional  reasons  while  the  wife  stays  in 
Italy.  After  two  years,  the  couple  decide  to  divorce.  The  couple  may  apply  for  divorce  in 
either Italy or Portugal pursuant to the new Brussels II Regulation. The courts in these States 
apply, in the first place, the law of the common nationality of the spouses. In the present case 
where the spouses are of different nationalities, the Italian courts would apply the law of the 
State “where the marriage has been principally based”. The Portuguese courts would instead 
apply the law of the spouses’ common habitual residence, or, failing that, the law with which 
the  spouses  have  the  “closest  connection”.  The  spouses  find  it  difficult  to  predict  what  the 
applicable law will be in their situation.  

2.2. 

Insufficient party autonomy 

The national conflict-of-law rules foresee in principle only one solution in a given situation, 
e.g. the application of the law of the spouses’ nationality or the law of the forum (“lex fori”). 
This may in certain situations not be sufficiently flexible. It fails for example to take account 
of the fact that citizens may feel closely connected with a Member State although they are not 
nationals of that State. Introducing a certain degree of party autonomy allowing the parties to 
choose the applicable law could render the rules more flexible and enhance legal certainty and 
predictability for the spouses.  

Example 2: the Italian couple living in Germany  

A couple of Italian nationality live in Munich since twenty years and feel perfectly integrated 
in German society. When their children leave home, the couple decide to divorce by consent. 
They  would  like  to  divorce  under  German  law,  with  which  they  feel  the  most  closely 
connected,  and  which  requires  only  one  year  of  separation  in  cases  of  divorce  by  consent, 
compared  to  three  years  of  separation  required  under  Italian  law.  The  new  Brussels  II 
Regulation allows the spouses to apply for divorce in either Germany or Italy. Nevertheless, 
since  German  as  well  as  Italian  conflict-of-law  rules  are  based,  in  the  first  place,  on  the 
common nationality of the spouses, the courts of both countries would apply Italian divorce 
law.  

2.3. 

Risk  of  results  that  do  not  correspond  to  the  legitimate  expectations  of  the 
citizens 

Citizens are increasingly taking advantage of the benefits of the internal market by moving to 
another  Member  State  for  professional  reasons.  They  are  unlikely  to  be  aware  that  the 
conditions for divorce may change drastically as a result of their move. This may happen for 
instance in the case where spouses of different nationalities move to a Member State of which 
none  of  them  is  a  national.  Since  the  new  Brussels  II  Regulation  does  not  allow  spouses  to 
apply for divorce in a Member State of which only one of them is a national in the absence of 
another  connecting  factor,  spouses  may  find  themselves  in  a  situation  where  the  only 

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possibility is to seise the courts of the Member State of their habitual residence. This may in 
certain circumstances lead to results that do not correspond to their legitimate expectations.  

Example 3: the Finnish/Swedish couple moving to Ireland  

A Finnish/Swedish couple move from Stockholm to Dublin where they are offered interesting 
jobs. Their marriage deteriorates and they finally decide to divorce. The couple would expect 
the divorce proceedings to be rather simple and swift, as it would be under Finnish or Swedish 
law, since they both want to divorce and do not have any children. However, only Irish courts 
have jurisdiction according to the new Brussels II Regulation and Irish courts apply Irish law 
(“lex  fori”)  to  divorce  proceedings,  irrespective  of  the  nationality  of  the  spouses.  The  only 
way to ensure the application of Swedish or Finnish divorce law would be if a spouse returned 
to his or her Member State of origin for at least six months and then applied for divorce in that 
country.  Neither  spouse  is  willing  or  able  to  quit  his  or  her  job  and  leave  Ireland  for  six 
months for this purpose. On the other hand, they want to avoid the application of Irish divorce 
law,  which  requires  a  four  year  separation  period  to  establish  that  the  marriage  has  broken 
down. They are surprised that the conditions for divorce have changed so dramatically, due to 
their decision to move to another Member State.  

2.4. 

Risk of difficulties for Community citizens living in a third State  

Whilst  the  rules  of  recognition  of  the  new  Brussels  II  Regulation  apply  to  all  divorce 
judgments  issued  by  a  court  of  a  Member  State,  the  rules  of  jurisdiction  do  not  cover  all 
situations.  This  may  give  rise  to  difficulties  for  Community  citizens  living  in  a  third  State. 
Situations may arise where none of the grounds of jurisdiction of the Regulation is applicable. 
The courts of the Member States may in such circumstances avail themselves of the national 
rules on international jurisdiction. However, the fact that these rules are not harmonised may 
lead  to  situations  where  no  court  within  the  European  Union  or  elsewhere  is  competent  to 
divorce  a  couple  of  Community  citizens  of  different  nationalities  who  live  in  a  third  State. 
Moreover, if a divorce is pronounced in a third State, the couple may face serious difficulties 
to have the divorce recognised in their respective Member States of origin.  

Example 4: the German/Dutch couple living in a third State  

A German/Dutch couple live in a third State since many years. Their relationship deteriorates 
and the German wife would like to divorce, preferably before a German court. However, she 
cannot apply for divorce in Germany or in any other Member State. None of the grounds of 
jurisdiction of the new Brussels II Regulation is applicable since the couple are not habitually 
resident  in  a  Member  State  and  are  not  of  common  nationality.  In  such  circumstances,  the 
courts  of  the  Member  States  may  avail  themselves  of  their  national  rules  of  jurisdiction. 
However, the German wife cannot apply for divorce in Germany under the German rules of 
jurisdiction,  since  the  Dutch  husband  can  only  be  sued  in  Germany  according  to  the 
jurisdiction rules of the Regulation according to Article 6, which offers a certain protection to 
respondents.  Nor  can  she  apply  for  divorce  in  the  Netherlands,  since  Dutch  law  does  not 
provide for internal jurisdiction rules in these circumstances. Consequently, the German wife 
is unable to apply for divorce in any Member State. Her only hope is that the courts  of the 
third State will have jurisdiction to deal with the matter. Even if that would be the case, it may 
be difficult to have a divorce pronounced in the third State recognised in Germany.  

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2.5. 

Risk of “rush to court”  

The rule on “lis pendens” (see point 3.6.3 of the attached working document) may induce a 
spouse  to  apply  for  divorce  before  the  other  spouse  has  done  so  to  prevent  the  courts  of 
another  Member  State  from  acquiring  jurisdiction  (“rush  to  court”).  This  may  lead  to 
situations  where  an  applicant  applies  for  divorce  in  a  particular  Member  State  to  obtain  a 
certain result, e.g. to circumvent the application of a particular divorce law. “Rush to court” 
may have negative consequences for the defendant if it leads to the application of a law with 
which he or she does not feel closely connected and which does not take account of his or her 
interests. This risk may be illustrated by the following example:  

Example 5: the Polish husband going to Finland to work 

A Polish couple, married since twenty years, live in Poland with their children. The husband 
receives  an  interesting  offer  to  work  in  Finland  for  two  years.  The  couple  agree  that  the 
husband  shall  accept  the  offer  and  that  the  wife  shall  stay  in  Poland.  After  one  year,  the 
husband tells his wife that he wants to divorce. He is aware that divorce proceedings under 
Polish  law  are  lengthy  and  that  the  court  must  establish  that  the  marriage  has  broken  down 
completely and irreparably. However, Finnish courts would have jurisdiction under the new 
Brussels II Regulation, since the husband has lived in Finland for more than one year. Finnish 
courts apply Finnish law to divorce proceedings according to the principle of “lex fori”. As a 
result,  the  Polish  husband  can  obtain  a  divorce  after  six  months’  consideration  period, 
notwithstanding his wife’s objections. Since the husband wants to obtain a divorce as quickly 
as  possible,  he  seises  a  Finnish  court  immediately,  which  pronounces  the  divorce  after  six 
months, despite the wife’s strong objections.  

Question 1: Are you aware of other problems than those identified above that may arise 
in the context of “international” divorces? 

3. 

POSSIBLE WAYS FORWARD  

3.1. 

Status quo 

One  possibility  would  be  to  leave  the  situation  unchanged  and  not  introduce  any  legislative 
change. It could be argued that the problems identified are not sufficiently serious or do not 
occur sufficiently frequently to warrant Community action. 

3.2. 

Harmonising the conflict-of-law rules 

Another  way  of  addressing  the  problem  would  be  to  introduce  harmonised  conflict-of-law 
rules based on a set of uniform connecting factors. This solution would have the advantage of 
ensuring  legal  certainty  (example  1).  Depending  on  the  contents  of  the  harmonised  rules,  it 
could  also  increase  party  autonomy  (example  2)  and  contribute  to  finding  satisfactory 
solutions for the citizens (example 3). It may at least partly reduce the need for “rush to court” 
(example 5), since any court seised would apply the divorce law designated  on the basis of 
common rules.  

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The  connecting  factors  would  need  to  be  carefully  considered  in  order  to  ensure  legal 
certainty  and  predictability  and  at  the  same  time  allow  for  some  flexibility.  The  objective 
would be to ensure that a divorce is governed according to the legal order with which it has 
the  closest  connection.  A  number  of  connecting  factors,  which  are  commonly  used  in 
international instruments and national conflict laws, could be envisaged, such as the spouses’ 
last  common  habitual  residence,  the  common  nationality  of  the  spouses,  the  last  common 
nationality if one spouse still retains it or “lex fori”. 

Question  2:  Are  you  in  favour  of  harmonising  conflict-of-law  rules?  What  are  the 
arguments for and against such solution?  

Question 3: What would be the most appropriate connecting factors?  

Question  4:  Should  the  harmonised  rules  be  confined  to  divorce  or  apply  also  to 
legal separation and marriage annulment?  

Question  5:  Should  the  harmonised  rules  include  a  public  policy  clause  enabling 
courts to refuse to apply a foreign law in certain circumstances? 

3.3. 

Providing to spouses the possibility to choose the applicable law  

Another possibility would be to introduce a limited possibility for the spouses to choose the 
applicable  law  in  divorce  proceedings.  The  possibility  to  choose  the  applicable  law  could 
enhance legal certainty and predictability for the spouses in particular in divorces by mutual 
consent. A certain party autonomy would also render the rules more flexible than current rules 
which  in  principle  only  foresee  one  possible  solution.  It  could  finally  facilitate  access  to 
courts in certain cases. This solution could be particularly useful when the spouses agree to 
divorce,  such  as  the  Portuguese-Italian  couple  (example  1)  and  the  Italian  couple  living  in 
Germany (example 2). 

The  principle  of  freedom  of  choice  has  increasingly  been  used  in  international  conventions 
regarding choice-of-law in the field of contract law, but to a lesser extent in family law. There 
are nevertheless exceptions, such as the recent Belgian law on private international law that 
allows spouses to choose between the law of the nationality of one of the spouses or Belgian 
law (i.e. “lex fori”).6  

To leave the parties an unlimited choice could result in the application of “exotic” laws with 
which the parties have little or no connection. It would therefore seem  preferable  to  restrict 
the choice to certain laws with which the spouses are closely connected (e.g. by virtue of the 
nationality  of  one  or  both  spouses,  last  common  habitual  residence  or  “lex  fori”).  One 
possibility would be to restrict the choice to the law of the forum State (“lex fori”) in order to 
ensure that courts would not be obliged to apply foreign law.  

6 

Article  55  paragraphe  2  of  « Loi  portant  le  Code  de  droit  international  privé »  of  16  July  2004, 
published 27.07.2004. 

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The  modalities  for  the  choice  would  obviously  need  to  be  further  explored.  It  could  be 
required that the choice should be expressed explicitly and in writing at the time the divorce 
application is introduced. One would also need to consider whether special safeguards would 
be  needed  to  protect  a  spouse  against  undue  pressure  from  the  other  spouse  to  choose  a 
particular law. Special considerations may also be necessary if the spouses have children. 

The choice of a law by the parties would obviously imply the choice of the substantive rules 
of  the  divorce  forum,  and  not  its  rules  on  private  international  law  (exclusion  of  so-called 
“renvoi”). The contrary would jeopardise the objective of creating legal certainty.  

Question  6:  Should  the  parties  be  allowed  to  choose  applicable  law?  What  are  the 
arguments for and against such a solution? 

Question 7: Should the choice be limited to certain laws? If yes, what would be the 
appropriate  connecting  factors?  Should  it  be  limited  to  the  laws  of  the  Member 
States? Should the choice be limited to “lex fori”? 

Question 8: Should the possibility to choose applicable law be confined to divorce 
or should it apply also to legal separation and marriage annulment?  

Question  9:  What  should  be  the  appropriate  formal  requirements  for  the  parties’ 
agreement on the choice of law?  

3.4. 

Revising  the  grounds  of  jurisdiction  listed  in  Article  3  of  Regulation  No. 
2201/2003  

The  grounds  of  jurisdiction  listed  in  Article  3  of  Council  Regulation  No.  2201/2003  were 
originally  designed  to  meet  objective  requirements,  to  be  in  line  with  the  interests  of  the 
parties,  involve  flexible  rules  to  deal  with  mobility  and  to  meet  individuals’  needs  without 
sacrificing legal certainty.7  

It  could  be  argued  that  the  jurisdiction  rules  do  not  entirely  meet  these  objectives.  In  the 
absence  of  uniform  conflict-of-law  rules,  the  existence  of  several  alternative  grounds  of 
jurisdiction may lead to the application of laws with which the spouses are not necessarily the 
most  closely  connected  (example  5).  On  the  other  hand,  the  grounds  of  jurisdiction  may  in 
certain cases not be sufficiently flexible to meet individuals’ needs (example 3).  

One  possibility  could  be  to  revise  the  jurisdiction  rules.  However,  the  consequences  of  any 
revision  would  need  to  be  carefully  considered.  Hence,  a  restriction  of  the  grounds  of 
jurisdiction may have adverse consequences in terms of flexibility and access to courts, unless 
the parties are given the opportunity to choose the competent court (see below point 3.6). On 
the  other  hand,  adding  new  grounds  of  jurisdiction  may  further  exacerbate  the  lack  of  legal 
certainty. 

7 

Point  27  of  the  Explanatory  report  on  the  Convention  of  28  may  1998  on  Jurisdiction  and  the 
Recognition and Enforcement of Judgment in Matrimonial Matters (on which the Brussels II Regulation 
is based), OJ C 221, 16.07.1998, p. 27.  

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Question  10:  In  your  experience,  does  the  existence  of  several  grounds  of 
jurisdiction result in “rush to court”?  

Question 11: Do you believe that the grounds of jurisdiction should be revised? 
If so, what would be the best solution?  

3.5. 

Revising  the  rule  on  residual  jurisdiction  in  Article  7  of  Regulation  No. 
2201/2003  

Another question is whether the rule on residual jurisdiction of the new Brussels II Regulation 
should  be  revised.  The  current  rules  may  lead  to  situations  where  no  court  in  the  European 
Union or indeed anywhere has jurisdiction to deal with a divorce application (example 4). In 
the  event  that  a  court  of  a  third  State  has  jurisdiction,  the  ensuing  divorce  decision  is  not 
recognised within the European Union pursuant to the new Brussels II Regulation, but only 
pursuant to national law or applicable international treaties. This is likely to cause difficulties 
if the couple subsequently seek to have the divorce recognised in their respective countries of 
origin.  

Question  12:  Do  you  consider  that  the  harmonisation  of  the  jurisdiction  rules 
should  be  reinforced  and  that  Article  7  of  Regulation  No.  2201/2003  should  be 
deleted, or at least limited to cases where no EU citizens are involved? If yes, what 
should these rules look like? 

3.6. 

Providing to spouses the possibility to choose the competent court  

Another  way  forward  could  be  to  allow  the  spouses  to  agree  upon  the  competent  court  in 
divorce cases (“prorogation of jurisdiction”). To allow the parties to agree that a court or the 
courts  of  a  certain  Member  State  should  have  jurisdiction  in  divorce  proceedings  between 
them  could  enhance  legal  certainty  and  flexibility  and  be  particularly  useful  in  cases  of 
divorces by consent.  

Prorogation of jurisdiction could prove useful also in situations where the spouses are unable 
to  seise  a  court  of  a  Member  State  under  the  current  jurisdiction  rules,  because  they  do  not 
have  common  nationality  or  domicile.  As  an  example,  it  would  allow  the  Swedish-Finnish 
couple living in Ireland to agree that a Finnish or a Swedish court would have jurisdiction in 
their  divorce  proceeding  (example  3).  Similarly,  it  would  allow  the  German-Dutch  couple 
living in a third State to agree on a competent court (example 4). The court designated by the 
parties would apply the law designated under its national conflict-of-law rules.  

The  possibility  to  choose  the  competent  court  exists  in  several  Community  instruments. 
Prorogation  is  possible  pursuant  to  Article  23  of  Council  Regulation  (EC)  No.  44/2001. 
Similarly, Article 12 of the new Brussels II Regulation foresees a limited possibility to choose 
competent court in matters of parental responsibility.  

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Prorogation in divorces could be limited to courts of Member States with which the spouses 
have a close connection, for example by virtue of the nationality or domicile of either spouse 
or the spouses’ last common habitual residence. If the spouses have children, special attention 
should be paid to ensure coherence of any such rules with the prorogation rule of Article 12 of 
the  new  Brussels  II  Regulation.  The  modalities  and  timing  for  the  choice  would  obviously 
need to be examined further.  

Question  13:  What  are  the  arguments  for  and  against  introducing  a  possibility  of 
prorogation in divorce cases? 

Question 14: Should prorogation be limited to certain jurisdictions?  

Question  15:  What  should  be  the  formal  requirements  for  the  parties’  prorogation 
agreement?  

3.7. 

Introducing the possibility to transfer a case  

As explained above (point 2.5.), a spouse may in certain circumstances have an incentive to 
“rush to court” before the other spouse has done so. This may at least partly be explained by 
the “lis pendens” rule of the new Brussels II Regulation, which has been criticised as being 
too rigid and to give an incentive to spouses to “strike first”. A possible remedy could be to 
introduce a possibility to transfer a divorce case, in exceptional circumstances, to a court of 
another  Member  State.  Article  15  of  the  new  Brussels  II  Regulation  provides  for  such 
possibility in matters of parental responsibility.  

A  transfer  could  be  envisaged  in  exceptional  circumstances  and  under  strict  conditions  if  a 
spouse  applies  for  divorce  in  a  Member  State,  but  the  defendant  requests  that  the  case  be 
transferred to a court of another Member State on the basis that the marriage was principally 
based in that State. To safeguard legal certainty, the “centre of gravity” of a marriage could be 
established on the basis of a closed list of connecting factors, including for example the last 
common  habitual  residence  of  the  spouses  if  one  spouse  still  lives  there  and  the  common 
nationality of the spouses.  

The  modalities  of  a  possible  transfer  mechanism  would  obviously  need  to  be  further 
elaborated  to  ensure  in  particular  that  it  would  not  result  in  undue  delays.  Additional 
safeguards may be necessary if the divorce proceedings are linked to proceedings on parental 
responsibility to ensure coherence with Article 15 of the new Brussels II Regulation. 

The possibility to transfer a case could provide a remedy to the problems that may arise when 
one  spouse  has  unilaterally  applied  for  divorce  against  the  will  of  the  other  spouse.  As  an 
example, it would allow the Polish wife mentioned in example 5 to request the Finnish court 
to transfer the case to a Polish court on the basis that both spouses being Polish nationals and 
Poland being the last common habitual residence of the spouses, the “centre of gravity” of the 
marriage was situated in Poland. 

Question  16:  Should  it  be  possible  to  request  a  transfer  of  a  case  to  the  court  of 
another Member State? What are the arguments for and against such solution?  

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Question 17: What should be the connecting factors to establish whether a case can 
be transferred to another Member State?  

Question  18:  What  safeguards  would  be  necessary  to  ensure  legal  certainty  and 
avoid undue delays? 

3.8. 

Combining different solutions  

The  ideas  described  above  are  examples  of  different  ways  forward.  However,  none  of  the 
ideas  could  by  itself  successfully  solve  all  the  problems  described  in  chapter  2.  One  could 
therefore envisage a combination of different solutions.  

As an example, spouses could be allowed to choose competent court based on the nationality 
of  either  spouse  or  their  last  habitual  residence.  In  addition,  spouses  could  be  allowed  to 
choose the applicable law, at least the application of “lex fori”. This combination could solve 
the problems described in examples 1-4 and be particularly useful in divorces by consent. To 
solve  the  problems  that  may  arise  where  only  one  spouse  wants  to  divorce  (example  5),  it 
could be envisaged to introduce a possibility to transfer a case to another Member State.  

Question  19:  Which  combination  of  solutions  do  you  believe  would  provide  the 
most appropriate remedy to the problems described?  

Question 20: Would you suggest any other solution to solve the problems described 
in chapter 2? 

EN 

11 

   EN